<PAGE>
As filed with the Securities and Exchange Commission on February 3, 1999
Registration No. 333-68887
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
LEVEL 3 COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 47-0210602
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
</TABLE>
---------------
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3677
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
THOMAS C. STORTZ, ESQ.
Senior Vice President, General Counsel and Secretary
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3677
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
with copies to:
JOHN S. D'ALIMONTE, ESQ.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000
Approximate date of commencement of proposed sale to the public: From time
to time, after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This Prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED FEBRUARY 3, 1999
PROSPECTUS
Level 3 Communications, Inc.
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
-----------
We will provide specific terms of these securities in supplements to this
Prospectus.
You should read this Prospectus and any prospectus supplement carefully
before you invest.
See "Risk Factors" on page 1 for a discussion of certain matters that you
should consider before investing in these securities.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ABOUT THIS PROSPECTUS...................................................... 1
WHERE YOU CAN FIND MORE INFORMATION........................................ 1
RISK FACTORS............................................................... 1
THE COMPANY................................................................ 2
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS........... 2
APPLICATION OF PROCEEDS.................................................... 2
DESCRIPTION OF DEBT SECURITIES............................................. 3
General Terms of Debt Securities......................................... 3
Certificated Securities.................................................. 4
Book-Entry Debt Securities............................................... 4
Merger................................................................... 5
Events of Default, Notice and Waiver..................................... 6
Modification of the Indentures........................................... 8
Defeasance and Covenant Defeasance....................................... 9
Senior Debt Securities................................................... 10
Subordination of Subordinated Securities................................. 10
Definition of Senior Indebtedness........................................ 11
Convertible Debt Securities.............................................. 11
DESCRIPTION OF PREFERRED STOCK............................................. 12
General.................................................................. 12
Dividends................................................................ 13
Redemption............................................................... 14
Conversion or Exchange Rights............................................ 15
Rights Upon Liquidation.................................................. 15
Voting Rights............................................................ 16
DESCRIPTION OF DEPOSITARY SHARES........................................... 17
General.................................................................. 17
Dividends and Other Distributions........................................ 17
Withdrawal of Stock...................................................... 17
Redemption of Depositary Shares.......................................... 18
Voting the Preferred Stock............................................... 18
Exchange of Preferred Stock.............................................. 18
Conversion of Preferred Stock............................................ 18
Amendment and Termination of the Deposit Agreement....................... 19
Charges of Preferred Stock Depositary.................................... 19
Resignation and Removal of Depositary.................................... 19
Miscellaneous............................................................ 19
DESCRIPTION OF COMMON STOCK................................................ 20
DESCRIPTION OF OUTSTANDING CAPITAL STOCK................................... 20
Common Stock............................................................. 20
Preferred Stock.......................................................... 20
Anti-Takeover Provisions................................................. 21
PLAN OF DISTRIBUTION....................................................... 21
By Agents................................................................ 21
By Underwriters.......................................................... 21
To Dealers............................................................... 21
Direct Sales............................................................. 21
Delayed Delivery Contracts............................................... 22
General Information...................................................... 22
LEGAL MATTERS.............................................................. 22
EXPERTS.................................................................... 22
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we
may, over the next two years, sell any combination of the securities described
in this Prospectus in one or more offerings up to a total dollar amount of
$3,500,000,000 or the equivalent denominated in foreign currencies or units of
two or more foreign currencies. This Prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add,
update or change information contained in this Prospectus. You should read
both this Prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference room at 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference room. Our SEC filings are also
available at the offices of the Nasdaq National Market, in Washington, D.C.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference our documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities.
. Annual Report on Form 10-K/A for the fiscal year ended December 27,
1997;
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998;
. Current Reports on Form 8-K, filed June 9, 1998, September 1, 1998,
October 1, 1998, October 5, 1998, December 2, 1998 and December 7, 1998
and on Form 8-K/A, filed April 30, 1998; and
. Registration Statements on Forms 8-A/A filed March 31, 1998 and June 10,
1998.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Vice President, Investor Relations
Level 3 Communications, Inc.
1450 Infinite Drive
Louisville, CO 80027
303-926-3000
You should rely only on the information incorporated by reference or
provided in this Prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this Prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front of those documents.
RISK FACTORS
Before you invest in our securities, you should carefully consider the risks
involved. These risks include, but are not limited to, (1) the risks described
in our Current Report on Form 8-K filed with the SEC on December 7, 1998,
which is incorporated by reference in this Prospectus, and (2) any risks that
may be described in other filings we make with the SEC or in the prospectus
supplements relating to specific offerings of securities.
<PAGE>
Unless the context otherwise requires, references in this Prospectus to the
"Company", "Level 3", "we" or "us" are to Level 3 Communications, Inc., a
Delaware corporation, and its subsidiaries. Level 3 Communications, Inc. was
known as "Peter Kiewit Sons', Inc." prior to the March 31, 1998 split-off of
its construction and mining management business from its other businesses.
THE COMPANY
We engage in the information services, communications and coal mining
businesses through ownership of operating subsidiaries and substantial equity
positions in public companies. In late 1997, we announced a business plan to
increase substantially our information services business and to expand the
range of services we offer. We will implement our business plan by building an
advanced, international, facilities-based communications network based on
Internet Protocol, or IP, technology.
Since late 1997, we have substantially increased the emphasis we place on
and the resources devoted to our communications and information services
business. We intend to become a facilities-based provider of a broad range of
integrated communications services. A facilities-based provider is one that
owns or leases a substantial portion of the plant, property and equipment
necessary to provide its services. To reach this goal, we plan to expand
substantially the business of our subsidiary PKS Information Services, Inc.
and to create, through a combination of construction, purchase and leasing of
facilities and other assets, an international, end-to-end, facilities-based
communications network. We are designing our network based on IP technology in
order to leverage the efficiencies of this technology to provide lower cost
communications services.
Our network will combine both local and long distance networks and will
connect customers end-to-end across the U.S. and in Europe and Asia. We expect
to complete the U.S. intercity portion of the network during the first quarter
of 2001. In the interim, we have leased a national network over which we began
to offer services in the third quarter of 1998. We intend to provide a full
range of communications services--including local, long distance,
international and Internet services.
Our principal executive offices are located at 3555 Farnam Street, Omaha,
Nebraska 68131 and our telephone number is (402) 536-3677.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, FISCAL YEAR ENDED
--------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---------- ------------ ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C>
-- 7.29 5.73 3.87 -- -- 20.94
</TABLE>
For this ratio, earnings consist of earnings (loss) before income taxes,
minority interest and discontinued operations plus fixed charges excluding
capitalized interest. Fixed charges consist of interest expensed and
capitalized, plus the portion of rent expense under operating leases deemed by
us to be representative of the interest factor, plus, prior to September 30,
1995, preferred stock dividends on preferred stock of its former subsidiary,
MFS Communications Company, Inc. We had deficiencies of earnings to fixed
charges of $106 million for the nine months ended September 30, 1998, $32
million for 1995 and $42 million for 1994.
APPLICATION OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net
proceeds from the sale of the offered securities will be used for working
capital, capital expenditures, acquisitions and other general corporate
purposes. Until we use the net proceeds in this manner, we may temporarily use
them to make short-term investments or reduce short-term borrowings.
2
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the Debt
Securities (as defined below). The applicable prospectus supplement will
describe the specific terms of the Debt Securities offered through that
prospectus supplement as well as any general terms described in this section
that will not apply to those Debt Securities.
The Debt Securities will be our direct unsecured general obligations and may
include debentures, notes, bonds and/or other evidences of indebtedness. The
Debt Securities will be either senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities").
The Debt Securities will be issued under one or more separate indentures
between us and IBJ Whitehall Bank & Trust Company (formerly known as IBJ
Schroder Bank & Trust Company), as trustee (the "Trustee"). Senior Debt
Securities will be issued under a "Senior Indenture," and Subordinated Debt
Securities will be issued under a "Subordinated Indenture." Together the
Senior Indentures and the Subordinated Indentures are called "Indentures".
We have summarized selected provisions of the Indentures below. The summary
is not complete. We have also filed the forms of the Indentures as exhibits to
the registration statement. You should read the Indentures for provisions that
may be important to you before you buy any Debt Securities. In the summary
below, we have included references to section numbers of the applicable
Indentures so that you can easily locate these provisions. Capitalized terms
used in the summary have the meanings specified in the Indentures.
General Terms of Debt Securities
The Debt Securities issued under each Indenture may be issued without limit
as to aggregate principal amount, in one or more series (Section 301 of the
Indentures). Each Indenture provides that there may be more than one Trustee
under such Indenture, each with respect to one or more series of Debt
Securities. Any Trustee under either Indenture may resign or be removed with
respect to one or more series of Debt Securities issued under that Indenture,
and a successor Trustee may be appointed to act with respect to such series
(Section 608 of the Indentures).
If two or more persons are acting as Trustee with respect to different
series of Debt Securities issued under the same Indenture, each of those
Trustees will be a trustee of a trust under that Indenture separate and apart
from the trust administered by any other Trustee (Section 609 of the
Indentures). In such a case, except as otherwise indicated in this Prospectus,
any action described in this Prospectus to be taken by the Trustee may be
taken by each of those Trustees only with respect to the one or more series of
Debt Securities for which it is Trustee.
A prospectus supplement relating to a series of Debt Securities being
offered will include specific terms relating to the offering and that series.
These terms will contain some or all of the following:
. the title of the Debt Securities;
. any limit on the aggregate principal amount of the Debt Securities;
. the purchase price of the Debt Securities (expressed as a percentage of
the principal amount);
. the date or dates on which the principal of and any premium on the Debt
Securities will be payable or the method for determining the date or
dates;
. if the Debt Securities will bear interest, the interest rate or rates
(which may be fixed or variable) or the method by which the rate or
rates will be determined;
. if the Debt Securities will bear interest, the date or dates from which
any interest will accrue, the Interest Payment Dates on which any
interest will be payable, the Regular Record Dates for such Interest
Payment Dates and the basis upon which interest shall be calculated if
other than that of a 360 day year of twelve 30-day months;
. the place or places where the principal of (and premium, if any) or
interest, if any, on the Debt Securities will be payable and the Debt
Securities may be surrendered for registration of transfer or exchange;
3
<PAGE>
. if we will have the option to redeem all or any portion of the Debt
Securities, the period or periods within which, the price or prices at
which and the terms and conditions upon which the Debt Securities may be
redeemed;
. any sinking fund or other similar provisions obligating us to redeem or
purchase all or any portion of the Debt Securities prior to final
maturity or permitting a Holder to require us to make such a purchase or
redemption, and the period or periods within which, the price or prices
at which and the terms and conditions upon which the Debt Securities
will be redeemed or purchased;
. the currency or currencies in which the Debt Securities are denominated
and payable if other than U.S. dollars;
. whether the amount of payments of principal of (and premium, if any) or
interest, if any, on the Debt Securities may be determined with
reference to an index, formula or other method and the manner in which
such amounts are to be determined;
. any additions or changes to the Events of Default in the respective
Indentures;
. any additions or changes with respect to the other covenants in the
respective Indentures;
. the terms and conditions, if any, upon which the Debt Securities may be
convertible into Common Stock or Preferred Stock, including the initial
conversion price or rate and the conversion period;
. whether the Debt Securities will be issued in certificated or book-entry
form;
. whether the Debt Securities will be in registered or bearer form and, if
in registered form, the denominations of the Debt Securities if other
than $1,000 and any integral multiple of $1,000;
. the applicability of the defeasance and covenant defeasance provisions
of the applicable Indenture; and
. any other terms of the Debt Securities consistent with the provisions of
the applicable Indenture (Section 301 of the Indentures).
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from
their stated principal amount. Special U.S. federal income tax, accounting and
other considerations applicable to Original Issue Discount Securities will be
described in the applicable prospectus supplement.
Unless otherwise provided with respect to a series of Debt Securities, the
Debt Securities will be issued only in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 (Section 302 of the
Indentures).
Certificated Securities
Except as otherwise stated in the applicable prospectus supplement, Debt
Securities will not be issued in certificated form. If, however, Debt
Securities are to be issued in certificated form, no service charge will be
made for any transfer or exchange of any of those Debt Securities, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with the transfer or exchange of those Debt
Securities (Section 305 of the Indentures).
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (each, a "Global Security") that will be
deposited with the depositary identified in the applicable prospectus
supplement (the "Depositary"). Unless it is exchanged in whole or in part for
Debt Securities in definitive form, a Global Security may not be transferred
except as a whole to a nominee of the Depositary for that Global Security, or
by a nominee of such Depositary to such Depositary, or to a successor of such
Depositary or a nominee of such successor.
4
<PAGE>
Unless otherwise stated, The Depository Trust Company, New York, New York
("DTC") will act as Depositary for each series of Global Securities.
Beneficial interests in Global Securities will be shown on, and transfers of
Global Securities will be effected only through, records maintained by DTC and
its participants.
DTC has provided the following information to us: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the provisions of Section 17A of the Securities Exchange Act
of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct
Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
such Direct Participant's accounts, eliminating the need for physical movement
of securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to DTC's book-entry
system is also available to others such as securities brokers and dealers,
banks and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Direct and
Indirect Participants are on file with the SEC.
Principal and interest payments on Global Securities registered in the name
of DTC's nominee will be made in immediately available funds to DTC's nominee
as the registered owner of the Global Securities. We and the Trustee will
treat DTC's nominee as the owner of the Global Securities for all other
purposes as well. Accordingly, we, the Trustee and any paying agent will have
no direct responsibility or liability to pay amounts due on the Global
Securities to owners of beneficial interests in the Global Securities. It is
DTC's current practice, upon receipt of any payment of principal or interest,
to credit Direct Participants' accounts on the payment date according to their
respective holdings of beneficial interests in the Global Securities as shown
on DTC's records. Payments by Direct and Indirect Participants to owners of
beneficial interests in the Global Securities will be governed by standing
instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in "street name". Such
payments will be the responsibility of such Direct and Indirect Participants
and not of DTC, the Trustee or us.
Debt Securities represented by a Global Security will be exchangeable for
Debt Securities in definitive form of like tenor in authorized denominations
only if:
. DTC notifies us that it is unwilling or unable to continue as
Depositary;
. DTC ceases to be a clearing agency registered under applicable law and a
successor depositary is not appointed by us within 90 days; or
. we, in our discretion, determine not to require all of the Debt
Securities of a series to be represented by a Global Security and notify
the Trustee of our decision.
Merger
We generally may consolidate with, or sell, lease or convey all or
substantially all of our assets to, or merge with or into, any other
corporation if certain conditions are met. These conditions are that:
. either (1) we are the continuing corporation, or (2) the successor
corporation (if other than us) formed by or resulting from any such
consolidation or merger or which receives the transfer of such assets
expressly assumes payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the performance and observance
of all the covenants and conditions of the applicable Indenture; and
. neither we nor the successor corporation is in default immediately after
the transaction under the applicable Indenture (Section 801 of the
Indentures).
5
<PAGE>
Events of Default, Notice and Waiver
Senior Indenture. The Senior Indenture provides that the following are
Events of Default with respect to any series of Senior Debt Securities:
. default for 30 days in the payment of any installment of interest on any
Debt Security of that series;
. default in the payment of the principal of (or premium, if any, on) any
Debt Security of that series at its Maturity;
. default in making a sinking fund payment required for any Debt Security
of that series;
. default in the performance of any of our other covenants in the Senior
Indenture (other than a covenant included in the Senior Indenture solely
for the benefit of another series of Senior Debt Securities), continued
for 60 days after written notice;
. the acceleration of the maturity of more than $25,000,000 in the
aggregate of any of our other indebtedness, where such indebtedness is
not discharged or such acceleration is not rescinded or annulled;
. certain events of bankruptcy, insolvency or reorganization of us or our
property; and
. any other Event of Default provided with respect to a particular series
of Debt Securities (Section 501 of the Senior Indenture).
The Senior Trustee generally may withhold notice to the Holders of any
series of Debt Securities of any default with respect to that series if it
considers such withholding to be in the interest of those Holders. However,
the Senior Trustee may not withhold notice of any default in the payment of
the principal of (or premium, if any) or interest on any Debt Security of that
series or in the payment of any sinking fund installment in respect of any
Debt Security of that series (Section 601 of the Senior Indenture).
If an Event of Default with respect to any series of Senior Debt Securities
occurs and is continuing, the Senior Trustee or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the principal amount of all of the Debt Securities of that series to
be due and payable immediately by written notice. Subject to certain
conditions, the Holders of a majority in principal amount of Outstanding Debt
Securities of that series may rescind and annul that acceleration if all
Events of Default, other than the non-payment of accelerated principal (or
specified portion thereof), with respect to Debt Securities of that series
have been cured or waived (Section 502 of the Senior Indenture). The Senior
Indenture also provides that Holders of not less than a majority in principal
amount of any series of Outstanding Senior Debt Securities may, subject to
certain limitations, waive any past default with respect to such series and
the consequences of that default (Section 513 of the Senior Indenture). The
prospectus supplement relating to any series of Senior Debt Securities which
are Original Issue Discount Securities will describe the particular provisions
relating to acceleration of a portion of the principal amount of those
Original Issue Discount Securities upon the occurrence and continuation of an
Event of Default. Within 120 days after the close of each fiscal year, we must
file with the Senior Trustee a statement, signed by specified of our officers,
stating whether or not those officers have knowledge of any default under the
Senior Indenture (Section 1004 of the Senior Indenture).
Subject to provisions in the Senior Indenture relating to its duties in case
of default, the Senior Trustee is not obligated to exercise any of its rights
or powers under the Senior Indenture at the request or direction of any
Holders of any series of Senior Debt Securities then Outstanding, unless those
Holders have offered the Senior Trustee reasonable security or indemnity
(Section 602 of the Senior Indenture). Subject to those indemnification
provisions and certain limitations contained in the Senior Indenture, the
Holders of not less than a majority in principal amount of any series of the
Outstanding Debt Securities issued thereunder will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Senior Trustee, or of exercising any trust or power conferred
upon the Senior Trustee (Section 512 of the Senior Indenture).
6
<PAGE>
Subordinated Indenture. The Subordinated Indenture provides that the
following are Events of Default with respect to any series of Subordinated
Debt Securities:
. default for 30 days in the payment of any installment of interest on any
Debt Security of that series;
. default in the payment of the principal of (or premium, if any, on) any
Debt Security of that series at its Maturity;
. default in making a sinking fund payment required for any Debt Security
of that series;
. any default in the performance of any of our other covenants in the
Subordinated Indenture (other than a covenant included in the
Subordinated Indenture solely for the benefit of another series of
Subordinated Debt Securities), continued for 60 days after written
notice;
. the acceleration of more than $25,000,000, where such indebtedness is
not discharged or such acceleration is not rescinded or annulled;
. certain events relating to the bankruptcy, insolvency or reorganization
of us or our property; and
. any other Event of Default provided with respect to a particular series
of Debt Securities (Section 501 of the Subordinated Indenture).
As with the Senior Indenture, the Subordinated Trustee generally may
withhold notice to the Holders of any series of Subordinated Debt Securities
of any default with respect to that series if it considers such withholding to
be in the interest of the Holders. However, the Subordinated Trustee may not
withhold notice of any default in the payment of the principal of (or premium,
if any) or interest on any Debt Security of that series or in the payment of
any sinking fund installment in respect of any Debt Security of that series)
(Section 601 of the Subordinated Indenture).
If an Event of Default with respect to any series of Subordinated Debt
Securities occurs and is continuing, then the Subordinated Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal amount of all of the Debt
Securities of that series to be due and payable immediately by written notice.
Subject to certain conditions, the Holders of a majority in principal amount
of Outstanding Debt Securities of that series may rescind and annul that
acceleration if all Events of Default with respect to Debt Securities of that
series have been cured or waived (Section 502 of the Subordinated Indenture).
The Subordinated Indenture also provides that Holders of not less than a
majority in principal amount of any series of the Outstanding Subordinated
Debt Securities may, subject to certain limitations, waive any past default
with respect to such series and the consequences of that default (Section 513
of the Subordinated Indenture). The prospectus supplement relating to any
series of Subordinated Debt Securities which are Original Issue Discount
Securities will describe the particular provisions relating to acceleration of
a portion of the principal amount of those Original Issue Discount Securities
upon the occurrence and continuation of an Event of Default. Within 120 days
after the close of each fiscal year, we must file with the Subordinated
Trustee a statement, signed by specified officers of us, stating whether or
not such officers have knowledge of any default under the Subordinated
Indenture (Section 1004 of the Subordinated Indenture).
Subject to provisions in the Subordinated Indenture relating to its duties
in case of default, the Subordinated Trustee is not obligated to exercise any
of its rights or powers under the Subordinated Indenture at the request or
direction of any Holders of any series of Subordinated Debt Securities then
Outstanding, unless those Holders have offered the Subordinated Trustee
reasonable security or indemnity (Section 602 of the Subordinated Indenture).
Subject to those indemnification provisions and certain limitations contained
in the Subordinated Indenture, the Holders of not less than a majority in
principal amount of any series of the Outstanding Subordinated Debt Securities
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Subordinated Trustee, or of
exercising any trust or power conferred upon the Subordinated Trustee (Section
512 of the Subordinated Indenture).
7
<PAGE>
Modification of the Indentures
Senior Indenture. Modifications and amendments of the Senior Indenture may
be made only, subject to certain exceptions, with the consent of the Holders
of not less than a majority in aggregate principal amount of all Outstanding
Debt Securities under the Senior Indenture which are affected by the
modification or amendment. However, the Holder of each affected Senior Debt
Security must consent to any modification or amendment of the Senior Indenture
that:
. changes the Stated Maturity of the principal of, or any installment of
interest (or premium, if any) on, that Debt Security;
. reduces the principal amount of, or the rate or amount of interest on,
or any premium payable on redemption of, that Debt Security, or reduces
the amount of principal of an Original Issue Discount Security that
would be due and payable upon declaration of acceleration of its
Maturity or would be provable in bankruptcy, or adversely affects any
right of repayment of the Holder of that Debt Security;
. changes the Place of Payment where, or the currency in which, any
payment on that Debt Security is payable;
. impairs the right to institute suit to enforce any payment on or with
respect to that Debt Security; or
. reduces the percentage of Outstanding Debt Securities of any series
necessary to modify or amend the Senior Indenture or to waive compliance
with certain of its provisions or certain defaults and their
consequences (Section 902 of the Senior Indenture).
The Senior Indenture also contains provisions permitting us and the Senior
Trustee to amend the Senior Indenture without the consent of the Holders of
any Senior Debt Securities in certain limited circumstances, such as:
. to evidence the succession of another entity to us and the assumption by
such successor of our covenants contained in the Senior Indenture;
. to secure the Securities; and
. to cure any ambiguity, to correct or supplement any provision in the
Senior Indenture which may be inconsistent with any other provision of
the Senior Indenture.
Subordinated Indenture. Modifications and amendments to the Subordinated
Indenture may be made only, subject to certain exceptions, with the consent of
the Holders of not less than a majority in aggregate principal amount of all
Outstanding Debt Securities under the Subordinated Indenture which are
affected by the modification or amendment. However, the Holder of each
affected Subordinated Debt Security must consent to any modification or
amendment of the Subordinated Indenture that:
. changes the Stated Maturity of the principal of, or any installment of
interest (or premium, if any) on, that Debt Security;
. reduces the principal amount of, or the rate or amount of interest on,
or any premium payable on redemption of, any such Debt Security, or
reduces the amount of principal of an Original Issue Discount Security
that would be due and payable upon declaration of acceleration of its
Maturity or would be provable in bankruptcy, or adversely affects any
right of the repayment of the Holder of that Debt Security;
. changes the Place of Payment where, or the currency in which, any
payment on that Debt Security is payable;
. impairs the right to institute suit to enforce any payment on or with
respect to that Debt Security;
. reduces the percentage of Outstanding Debt Securities of any series
necessary to modify or amend the Subordinated Indenture or to waive
compliance with certain of its provisions or certain defaults and their
consequences; or
8
<PAGE>
. subordinates the indebtedness evidenced by that Debt Security to any of
our indebtedness other than Senior Indebtedness (as defined in the
Subordinated Indenture) (Section 902 of the Subordinated Indenture).
The Subordinated Indenture also contains provisions permitting us and the
Subordinated Trustee to amend the Subordinated Indenture without the consent
of the Holders of any Subordinated Securities in certain limited
circumstances, such as:
. to evidence the succession of another entity to us and the assumption by
such successor of our covenants contained in the Subordinated Indenture;
. to secure the Securities; and
. to cure any ambiguity, to correct or supplement any provision in the
Subordinated Indenture which may be inconsistent with any other
provision of the Subordinated Indenture.
Defeasance and Covenant Defeasance
When we establish a series of Debt Securities, we may provide that that
series is subject to the defeasance and discharge provisions of the applicable
Indenture. If those provisions are made applicable, we may elect either:
. to defease and be discharged from, subject to certain limitations, all
of our obligations with respect to those Debt Securities ("defeasance")
(Section 1402 of the Indentures); or
. to be released from our obligations to comply with certain covenants
relating to those Debt Securities as described in the applicable
prospectus supplement ("covenant defeasance") (Section 1403 of the
Indentures).
To effect such a defeasance or covenant defeasance, we must irrevocably
deposit with the relevant Trustee, in trust, an amount, in funds or Government
Obligations (as defined below), or both, which, through the payment of
principal and interest in accordance with their terms, will provide money in
an amount sufficient to pay, when due, the principal of (and premium, if any)
and interest, if any, on those Debt Securities and any mandatory sinking fund
or analogous payments on those Debt Securities.
On such a defeasance, our obligations to pay Additional Amounts, if any,
upon the occurrence of certain events, to register the transfer or exchange of
those Debt Securities, to replace certain of those Debt Securities, to
maintain an office relating to those Debt Securities and to hold moneys for
payment in trust will not be discharged.
Such a trust may only be established if, among other things, we have
delivered to the relevant Trustee an Opinion of Counsel to the effect that the
Holders of those Debt Securities:
. will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the defeasance or covenant defeasance; and
. will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if the
defeasance or covenant defeasance had not occurred. In the case of
defeasance, the Opinion of Counsel must be based upon a ruling of the
Internal Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the applicable Indenture
(Section 1404 of the Indentures).
"Government Obligations" means generally securities which are:
. direct obligations of the United States of America or of the government
which issued the foreign currency in which the Debt Securities of a
particular series are payable, in each case, where the issuer has
pledged its full faith and credit to pay the obligations; or
9
<PAGE>
. obligations of an agency or instrumentality of the United States of
America or of the government which issued the foreign currency in which
the Debt Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government.
In any case, the issuer of Government Obligations cannot have the option
to call or redeem the obligations. In addition, Government Obligations
include, subject to certain qualifications, a depository receipt issued
by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal
of any such Government Obligation held by such custodian for the account
of a depository receipt holder (Section 101 of the Indentures).
If we effect covenant defeasance with respect to any Debt Securities and
those Debt Securities are declared due and payable because any Event of
Default has occurred (other than an Event of Default relating to any covenant
from which we have been released because of the covenant defeasance) the
amount in money and/or Government Obligations on deposit with the relevant
Trustee, will be sufficient to pay amounts due on the Debt Securities at the
time of their Stated Maturity but may not be sufficient to pay all amounts due
on the Debt Securities at the time of the acceleration. However, we would
remain liable to pay all amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions, if
any, permitting defeasance or covenant defeasance, including any modifications
to the provisions described above.
Senior Debt Securities
Senior Debt Securities are to be issued under the Senior Indenture. Each
series of Senior Debt Securities will constitute Senior Indebtedness and will
rank equally with each other series of Senior Debt Securities and other Senior
Indebtedness. All subordinated debt (including, but not limited to, all
Subordinated Securities) will be subordinated to the Senior Debt Securities
and other Senior Indebtedness.
Subordination of Subordinated Securities
Subordinated Indenture. The payment of the principal of (and premium, if
any) and interest on the Subordinated Securities will be subordinated to our
Senior Indebtedness, whether outstanding on the date of the Subordinated
Indenture or incurred after that date (Section 1701 of the Subordinated
Indenture). At September 30, 1998, after giving pro forma effect to the
Company's issuance on December 2, 1998 of 10 1/2% Senior Discount Notes Due
2008, our aggregate Senior Indebtedness was approximately $2,646,000,000. The
applicable prospectus supplement for each issuance of Subordinated Securities
will specify the aggregate amount of our outstanding indebtedness as of the
most recent practicable date that would rank senior to and equally with the
offered Subordinated Securities.
Ranking. No class of Subordinated Securities is subordinated to any other
class of subordinated debt securities. See "Subordination Provisions" below.
Subordination Provisions. If any of certain specified events occur, the
holders of Senior Indebtedness, must receive payment of the full amount due on
the Senior Indebtedness in respect of principal, premium (if any) and
interest, or such payment must be duly provided for, before we may pay the
Holders of any of the Subordinated Securities principal of (or premium, if
any) or interest on the Subordinated Securities. These events are:
. any distribution of our assets upon our dissolution, winding up,
liquidation or reorganization or any other marshalling of our assets and
liabilities, except for a distribution in connection with a merger or
consolidation or a conveyance or transfer of all or substantially all of
our properties complying with the covenant described above under
"Merger";
. the occurrence and continuation of a default with respect to the payment
of principal of (or premium, if any) or interest on any Senior
Indebtedness; or
10
<PAGE>
. a declaration of the principal of any series of the Subordinated
Securities (or in the case of Original Issue Discount Securities, the
portion of the principal amount thereof referred to in Section 502 of
the Subordinated Indenture) as due and payable, that has not been
rescinded and annulled.
However, if the event is the acceleration of any series of Subordinated
Securities, only the holders of Senior Indebtedness outstanding at the time of
the acceleration of those Subordinated Securities (or, in the case of Original
Issue Discount Securities, that portion of the principal amount) must receive
payment of the full amount due on that Senior Indebtedness in respect of
principal, premium (if any) and interest, or such payment must be duly
provided for, before we may pay the Holders of any of the Subordinated
Securities principal of (or premium, if any) or interest on the Subordinated
Securities.
As a result of the subordination in favor of the holders of Senior
Indebtedness, certain of our general creditors, including holders of Senior
Indebtedness, may recover more, ratably, than the Holders of the Subordinated
Securities in the event of insolvency.
Definition of Senior Indebtedness
Senior Indebtedness is defined in the Subordinated Indenture to mean the
following indebtedness or obligations, unless the instrument by which we
incurred, assumed or guaranteed that indebtedness or those obligations
expressly provides that that indebtedness or those obligations are subordinate
or junior in right of payment to any other of our indebtedness or obligations:
. the principal of and premium, if any, and unpaid interest on
indebtedness for money borrowed;
. purchase money and similar obligations;
. obligations under capital leases;
. guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which we are responsible for the payment of,
such indebtedness of others;
. renewals, extensions and refunding of any such indebtedness;
. interest or obligations in respect of any such indebtedness accruing
after the commencement of any insolvency or bankruptcy proceedings; and
. obligations associated with derivative products.
Convertible Debt Securities
Unless otherwise provided in the applicable prospectus supplement, the
following provisions will apply to Debt Securities that will be convertible
into Common Stock or Preferred Stock ("Convertible Debt Securities").
Conversion. Unless we have previously redeemed a Convertible Debt Security,
the Holder of those Convertible Debt Securities may, at any time during the
period specified in the applicable prospectus supplement, convert those
Convertible Debt Securities into shares of Common Stock or Preferred Stock.
The conversion price or rate for each $1,000 principal amount of Convertible
Debt Securities will be specified in the applicable prospectus supplement. The
Holder of a Convertible Debt Security may convert a portion of the Convertible
Debt Security which is $1,000 principal amount or any integral multiple of
$1,000 (Section 1602 of the Indentures). In the case of Convertible Debt
Securities called for redemption, conversion rights will expire at the close
of business on the date fixed for the redemption. However, in the case of
repayment at the option of the applicable Holder, conversion rights will
terminate upon receipt of written notice of the Holder's exercise of that
option (Section 1602 of the Indentures).
11
<PAGE>
In certain events, the conversion price or rate will be subject to
adjustment as specified in the applicable Indenture. For Debt Securities
convertible into Common Stock, those events include:
. the issuance of shares of Common Stock as a dividend;
. subdivisions and combinations of Common Stock;
. the issuance to all holders of Common Stock of rights or warrants
entitling such holders (for a period not exceeding 45 days) to subscribe
for or purchase shares of Common Stock at a price per share less than
the current market price per share of Common Stock; and
. the distribution to all holders of Common Stock of (1) shares of our
capital stock (other than Common Stock), (2) evidences of our
indebtedness or assets (excluding cash dividends or distributions paid
from our retained earnings) or (3) subscription rights or warrants
(other than those referred to above).
No adjustment of the conversion price or rate will be required in any of
these cases unless an adjustment would require a cumulative increase or
decrease of at least 1% in such price or rate (Section 1605 of the
Indentures). Fractional shares of Common Stock will not be issued upon
conversion. In place of fractional shares, we will pay a cash adjustment
(Section 1606 of the Indentures). Unless otherwise specified in the applicable
prospectus supplement, Convertible Debt Securities convertible into Common
Stock surrendered for conversion between any record date for an interest
payment and the related interest payment date must be accompanied by payment
of an amount equal to the interest payment on the surrendered Convertible Debt
Security (Section 1604 of the Indentures). However, that payment does not have
to accompany Convertible Debt Securities surrendered for conversion if those
Convertible Debt Securities have been called for redemption during that
period.
The adjustment provisions for Debt Securities convertible into shares of
Preferred Stock will be determined at the time of an issuance of such Debt
Securities and will be described in the applicable prospectus supplement.
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of our Preferred
Stock. The applicable prospectus supplement will describe the specific terms
of the Preferred Stock offered through that prospectus supplement as well as
any general terms described in this section that will not apply to those
shares of Preferred Stock.
We have summarized certain selected terms of the Preferred Stock in this
section. The summary is not complete. You should read our Restated Certificate
of Incorporation that is an exhibit to our Annual Report on Form 10-K and the
Certificate of Designation relating to the applicable series of the Preferred
Stock that we will file with the SEC for additional information before you buy
any Preferred Stock.
General
Our Restated Certificate of Incorporation and Delaware General Corporation
Law give our Board of Directors the authority, without further stockholder
action, to issue a maximum of 10,000,000 shares of Preferred Stock. The Board
of Directors has the authority to fix the following terms with respect to
shares of any series of Preferred Stock:
. the designation of the series;
. the number of shares to comprise the series;
. the dividend rate or rates payable with respect to the shares of the
series;
. the redemption price or prices, if any, and the terms and conditions of
any redemption;
. the voting rights;
12
<PAGE>
. any sinking fund provisions for the redemption or purchase of the shares
of the series;
. the terms and conditions upon which the shares are convertible or
exchangeable, if they are convertible or exchangeable; and
. any other relative rights, preferences and limitations pertaining to the
series.
The Preferred Stock will have the rights described in this section unless
the applicable prospectus supplement provides otherwise. You should read the
prospectus supplement relating to the particular series of the Preferred Stock
it offers for specific terms, including:
. the designation, stated value and liquidation preference of that series
of the Preferred Stock and the number of shares offered;
. the initial public offering price at which the shares will be issued;
. the dividend rate or rates (or method of calculation), the dividend
periods, the date or dates on which dividends will be payable and
whether such dividends will be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate;
. any redemption or sinking fund provisions;
. any conversion or exchange provisions;
. the procedures for any auction and remarketing, if any, of that series
of Preferred Stock;
. whether interests in that series of Preferred Stock will be represented
by our Depositary Shares; and
. any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of that
series of Preferred Stock.
When we issue shares of Preferred Stock against payment for the shares, they
will be fully paid and nonassessable (that is, the full purchase price for
those shares will have been paid and the holders of those shares will not be
assessed any additional monies for those shares). Holders of Preferred Stock
will have no preemptive rights to subscribe for any additional securities that
we may issue.
Because we are a holding company, our rights and the rights of holders of
our securities, including the holders of Preferred Stock, to participate in
the distribution of assets of any subsidiary of ours upon the subsidiary's
liquidation or recapitalization will be subject to the prior claims of that
subsidiary's creditors and preferred stockholders, except to the extent we may
ourselves be a creditor with recognized claims against the subsidiary or a
holder of preferred stock of the subsidiary.
Dividends
The Holders of the Preferred Stock will be entitled to receive dividends, if
declared by our Board of Directors out of our assets that we can legally use
to pay dividends. The prospectus supplement relating to a particular series of
Preferred Stock will describe the dividend rates and dates on which dividends
will be payable. The rates may be fixed or variable or both. If the dividend
rate is variable, the applicable prospectus supplement will describe the
formula used for determining the dividend rate for each dividend period. We
will pay dividends to the holders of record as they appear on our stock books
on the record dates fixed by our Board of Directors. The applicable prospectus
supplement will specify whether dividends will be paid in the form of cash,
Preferred Stock (of the same or a different series) or Common Stock.
The applicable prospectus supplement will also state whether dividends on
any series of Preferred Stock are cumulative or noncumulative. If our Board of
Directors does not declare a dividend payable on a dividend payment date on
any noncumulative series of Preferred Stock, then the holders of that series
will not be entitled to receive a dividend for that dividend period and we
will not be obligated to pay the dividend accrued for that period, whether or
not dividends on such Preferred Stock are declared or paid on any future
dividend payment dates.
13
<PAGE>
Our Board of Directors may not declare and pay a dividend on any of our
stock ranking, as to dividends, equal with or junior to any series of
Preferred Stock unless full dividends on that series have been declared and
paid (or declared and sufficient money is set aside for payment). Until full
dividends are paid (or declared and payment is set aside) on Preferred Stock
ranking equal as to dividends, then:
. we will declare any dividends pro rata among the Preferred Stock of each
series and any Preferred Stock ranking equal to the Preferred Stock as
to dividends (i.e., the dividends we declare per share on each series of
such Preferred Stock will bear the same relationship to each other that
the full accrued dividends per share on each such series of the
Preferred Stock bear to each other);
. other than such pro rata dividends, we will not declare or pay any
dividends or declare or make any distributions upon any security ranking
junior to or equal with the Preferred Stock as to dividends or upon
liquidation (except dividends or distributions paid for with securities
ranking junior to the Preferred Stock as to dividends and upon
liquidation); and
. we will not redeem, purchase or otherwise acquire (or set aside money
for a sinking fund for) any securities ranking junior to or equal with
the Preferred Stock as to dividends or upon liquidation (except by
conversion into or exchange for stock junior to the Preferred Stock as
to dividends and upon liquidation).
We will not owe any interest, or any money in lieu of interest, on any
dividend payment(s) on any series of the Preferred Stock which may be past
due.
Redemption
Preferred Stock may be redeemable, in whole or in part, at our option, and
may be subject to mandatory redemption through a sinking fund or otherwise, as
described in the applicable prospectus supplement. Redeemed Preferred Stock
will become authorized but unissued shares of Preferred Stock that we may
issue in the future.
If a series of Preferred Stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we
will redeem each year and the redemption price. If Preferred Stock is
redeemed, we will pay all accrued and unpaid dividends on those shares to, but
excluding, the redemption date. In the case of any noncumulative series of
Preferred Stock, accrued and unpaid dividends will not include any
accumulation of dividends for prior dividend periods. The applicable
prospectus supplement will also specify whether we will pay the redemption
price in cash or other property. If the redemption price for Preferred Stock
of any series is payable only from the net proceeds of the issuance of our
capital stock, the terms of such Preferred Stock may provide that, if no such
capital stock shall have been issued or to the extent the net proceeds from
any issuance are insufficient to pay in full the aggregate redemption price
then due, such Preferred Stock shall automatically and mandatorily be
converted into shares of the applicable capital stock pursuant to conversion
provisions specified in the applicable prospectus supplement.
If fewer than all of the outstanding shares of any series of the Preferred
Stock are to be redeemed, our Board of Directors will determine the number of
shares to be redeemed. We may redeem the shares pro rata from the holders of
record in proportion to the number of shares held by them (with adjustments to
avoid redemption of fractional shares) or by lot in a manner determined by our
Board of Directors.
Even though the terms of a series of Preferred Stock may permit redemption
of shares of Preferred Stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due:
. we will not redeem any Preferred Stock of that series unless we
simultaneously redeem all outstanding shares of Preferred Stock of that
series; and
. we will not purchase or otherwise acquire any Preferred Stock of that
series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring Preferred Stock of that series pursuant to a purchase
or exchange offer if we make the offer on the same terms to all holders of
that series.
14
<PAGE>
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 to 60 days prior to the date fixed for
redemption. We will mail the notices to the holders' addresses as they appear
on our stock records. Each notice will state:
. the redemption date;
. the number of shares and the series of the Preferred Stock to be
redeemed;
. the redemption price;
. the place or places where holders can surrender the certificates for the
Preferred Stock for payment of the redemption price;
. that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
. the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the Preferred Stock held
by any holder, we will also specify the number of shares to be redeemed from
the holder in the notice.
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
. the dividends on the Preferred Stock called for redemption will no
longer accrue;
. such shares will no longer be considered outstanding; and
. the holders will no longer have any rights as stockholders except to
receive the redemption price.
When the holders of these shares surrender the certificates representing
these shares, in accordance with the notice, the redemption price described
above will be paid out of the funds we provide. If fewer than all the shares
represented by any certificate are redeemed, a new certificate will be issued
representing the unredeemed shares without cost to the holder of those shares.
Conversion or Exchange Rights
The prospectus supplement relating to a series of Preferred Stock that is
convertible or exchangeable will state the terms on which shares of such
series are convertible or exchangeable into Common Stock, another series of
preferred stock or Debt Securities.
Rights Upon Liquidation
Unless the applicable prospectus supplement states otherwise, if we
voluntarily or involuntarily liquidate, dissolve or wind up our business, the
holders of shares of each series of the Preferred Stock will be entitled to
receive:
. liquidation distributions in the amount stated in the applicable
prospectus supplement; and
. all accrued and unpaid dividends (whether or not earned or declared).
We will pay these amounts to the holders of shares of each series of the
Preferred Stock, and all amounts owing on any Preferred Stock ranking equally
with such series of Preferred Stock as to distributions upon liquidation, out
of our assets available for distribution to stockholders before any
distribution is made to holders of any securities ranking junior to the series
of Preferred Stock upon liquidation.
If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our
business and (2) the assets available for distribution to the holders of the
Preferred Stock of any series and any other shares of our stock ranking equal
with such series as to any such distribution are insufficient to pay all
amounts to which the holders are entitled, then we will only make pro rata
distributions to the holders of all shares ranking equal as to distributions
15
<PAGE>
upon dissolution, liquidation or winding up of our business (i.e., the
distributions we pay to the holders of all shares ranking equal as to
distributions upon dissolution, liquidation or winding up of our business will
bear the same relationship to each other that the full distributable amounts
for which such holders are respectively entitled upon such dissolution,
liquidation or winding up of our business bear to each other).
After we pay the full amount of the liquidation distribution to which the
holders of a series of the Preferred Stock are entitled, such holders will
have no right or claim to any of our remaining assets.
Voting Rights
Except as indicated below or in the applicable prospectus supplement, or
except as expressly required by applicable law, the holders of Preferred Stock
will not be entitled to vote.
If we fail to pay dividends on any shares of Preferred Stock for six
consecutive quarterly periods, the holders of such shares of Preferred Stock
(voting separately as a class with all other series of preferred stock upon
which the same voting rights have been conferred and are exercisable) will be
entitled to vote for the election of two additional directors to the Board of
Directors. This may be done at a special meeting called by the holders of
record of at least 10% of those shares of Preferred Stock or the next annual
meeting of stockholders and at each subsequent meeting until:
. in the case of a series of Preferred Stock with cumulative dividends,
all dividends accumulated on that series of Preferred Stock for the past
dividend periods and the then current dividend period have been fully
paid or declared and a sum sufficient for the payment of these dividends
has been set aside for payment; or
. in the case of a series of noncumulative Preferred Stock, four
consecutive quarterly dividends on that series of noncumulative
Preferred Stock have been fully paid or declared and a sum sufficient
for the payment of these dividends has been set aside for payment.
In this case, the entire Board of Directors will be increased by two
directors.
So long as any shares of Preferred Stock remain outstanding, unless we
receive the consent of the holders of any outstanding series of Preferred
Stock as specified below, we will not:
. authorize, create or issue, or increase the authorized or issued amount
of, any class or series of capital stock ranking prior to the
outstanding series of Preferred Stock with respect to payment of
dividends or distribution of assets upon liquidation, dissolution or
winding up, or reclassify any capital stock into any such shares, or
authorize, create or issue any obligation or security convertible into,
exchangeable for or evidencing the right to purchase any of these
shares; or
. amend, alter or repeal the provisions of our Restated Certificate of
Incorporation, including the Certificate of Designation relating to that
series of Preferred Stock, whether by merger, consolidation, or
otherwise, so as to materially and adversely affect any right,
preference, privilege or voting power of that series of Preferred Stock
or the holders of that series of Preferred Stock.
This consent must be given by the holders of at least two-thirds of each
series of all outstanding Preferred Stock described in the preceding sentence,
voting separately as a class. We will not be required to obtain this consent
with respect to the actions relating to changes to our Restated Certificate of
Incorporation, however, if we only:
. increase the amount of the authorized Preferred Stock or any outstanding
series of Preferred Stock or any of our other capital stock; or
. create and issue another series of Preferred Stock or any other capital
stock; and
. in either case, such Preferred Stock ranks equal with or junior to the
outstanding Preferred Stock with respect to the payment of dividends and
the distribution of assets upon the liquidation, dissolution or winding
up of our business.
16
<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of shares of
Preferred Stock represented by depositary shares (the "Depositary Shares").
The applicable prospectus supplement will describe the specific terms of the
Depositary Shares offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those Depositary Shares.
We have summarized in this section certain terms and provisions of the
Deposit Agreement (as defined below), the Depositary Shares and the receipts
representing Depositary Shares ("Depositary Receipts"). The summary is not
complete. You should read the forms of Deposit Agreement and Depositary
Receipt that we have filed with the SEC for additional information before you
buy any Depositary Shares that represent Preferred Stock of that series.
General
We may issue Depositary Receipts evidencing the Depositary Shares. Each
Depositary Share will represent a fraction of a share of Preferred Stock.
Shares of Preferred Stock of each class or series represented by Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") among us, the depositary (the "Preferred Stock Depositary") and
the holders of the Depositary Receipts. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Receipt will be entitled, in proportion
to the fraction of a share of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipt, to all the rights and preferences
of the Preferred Stock represented by such Depositary Shares. Those rights
include any dividend, voting, conversion, redemption and liquidation rights.
Immediately following the issuance and delivery of the Preferred Stock by us
to the Preferred Stock Depositary, we will cause the Preferred Stock
Depositary to issue the Depositary Receipts on our behalf.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts in proportion to the number of such Depositary Receipts
owned by such holders.
If there is a distribution other than in cash, the Preferred Stock
Depositary will distribute property it receives to the entitled record holders
of Depositary Receipts, unless the Preferred Stock Depositary determines that
it is not feasible to make such distribution. If this occurs, the Preferred
Stock Depositary may, with our approval, sell the property and distribute the
net proceeds from this sale to the holders of Depositary Shares.
Withdrawal of Stock
If a holder of Depositary Receipts surrenders the Depositary Receipts at the
corporate trust office of the Preferred Stock Depositary (unless the related
Depositary Shares have previously been called for redemption, converted or
exchanged into other securities of our company), the holder will be entitled
to receive at this office the number of shares of the Preferred Stock and any
money or other property represented by such Depositary Shares. Holders of
Depositary Receipts will be entitled to receive whole or fractional shares of
the Preferred Stock on the basis of the proportion of Preferred Stock
represented by each Depositary Share specified in the applicable prospectus
supplement. Holders of shares of Preferred Stock received in exchange for
Depositary Shares will no longer be entitled to receive Depositary Shares in
exchange for shares of Preferred Stock. If the holder delivers Depositary
Receipts evidencing a number of Depositary Shares that is more than the number
of Depositary Shares representing the number of shares of Preferred Stock to
be withdrawn, the Preferred Stock Depositary will issue the holder a new
Depositary Receipt evidencing such excess number of Depositary Shares at the
same time.
17
<PAGE>
Redemption of Depositary Shares
Whenever we redeem shares of Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of that redemption
date the number of Depositary Shares representing shares of the Preferred
Stock so redeemed. However, we must have paid in full the redemption price of
the Preferred Stock to be redeemed plus any accrued and unpaid dividends on
the Preferred Stock to the Preferred Stock Depositary.
The redemption price per Depositary Share will be equal to the redemption
price and any other amounts per share payable with respect to the Preferred
Stock. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by the Preferred Stock
Depositary by lot or pro rata or other equitable method, in each case as we
may determine.
After the date fixed for redemption, the Depositary Shares called for
redemption will no longer be outstanding. When the Depositary Shares are no
longer outstanding, all rights of the holders of the related Depositary
Receipts will cease, except the right to receive money or other property that
the holders of the Depositary Receipts were entitled to receive upon such
redemption. These payments will be made when the holders surrender their
Depositary Receipts to the Preferred Stock Depositary.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depositary will mail
information about the meeting contained in the notice to the record holders of
the Depositary Shares representing such Preferred Stock. Each record holder of
Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to how the Preferred Stock underlying the
holder's Depositary Shares will be voted.
The Preferred Stock Depositary will vote the amount of Preferred Stock
represented by such Depositary Shares according to these instructions. We will
agree to take all reasonable action deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to vote the
Preferred Stock in that manner. The Preferred Stock Depositary will not vote
shares of Preferred Stock for which it does not receive specific instructions
from the holders of Depositary Shares representing such Preferred Stock. The
Preferred Stock Depositary will not be responsible for any failure to carry
out any voting instruction, or for the manner or effect of any vote, as long
as its action or inaction is in good faith and does not result from its
negligence or willful misconduct.
Exchange of Preferred Stock
Whenever we exchange all of the shares of Preferred Stock held by the
Preferred Stock Depositary for Debt Securities or Common Stock, the Preferred
Stock Depositary will exchange as of that exchange date all Depositary Shares
representing all of the shares of the Preferred Stock exchanged for Debt
Securities or Common Stock. However, we must have issued and deposited with
the Preferred Stock Depositary Debt Securities or Common Stock for all of the
shares of the Preferred Stock to be exchanged.
The exchange rate per Depositary Share will be equal to the exchange rate
per share of Preferred Stock, multiplied by the fraction of a share of
Preferred Stock represented by one Depositary Share, plus all money and other
property, if any, represented by such Depositary Shares, including all accrued
and unpaid dividends on the shares of Preferred Stock.
Conversion of Preferred Stock
The Depositary Shares, as such, are not convertible or exchangeable into
Common Stock or any of our other securities or property. Nevertheless, the
prospectus supplement relating to an offering of Depositary Shares may provide
that, the holders of Depositary Receipts may surrender their Depositary
Receipts to the Preferred Stock
18
<PAGE>
Depositary with written instructions to the Preferred Stock Depositary to
instruct us to cause the conversion or exchange of the Preferred Stock
represented by these Depositary Shares into whole shares of our Common Stock,
other shares of our Preferred Stock or our Debt Securities. We have agreed
that upon receipt of these instructions and any related amounts payable we
will cause the requested conversion or exchange. If the Depositary Shares are
to be converted or exchanged in part only, a new Depositary Receipt or
Receipts will be issued for any Depositary Shares not to be converted or
exchanged.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended by agreement between us and
the Preferred Stock Depositary. However, any amendment that materially and
adversely alters the rights of the holders of Depositary Shares or that would
be materially and adversely inconsistent with the rights granted to the
holders of the related Preferred Stock will not be effective unless approved
by the holders of at least two thirds of the Depositary Shares then
outstanding.
We may terminate the Deposit Agreement upon not less than 60 days' notice if
holders of a majority of the Depository Shares then outstanding consent. If we
terminate the Deposit Agreement, the Preferred Stock Depositary will deliver
or make available to each holder of Depositary Receipts that surrenders the
Depositary Receipts it holds, the number of whole or fractional shares of
Preferred Stock represented by the Depositary Shares evidenced by these
Depositary Receipts.
In addition, the Deposit Agreement will automatically terminate if:
. all outstanding Depositary Shares are redeemed, converted or exchanged;
or
. there is a final distribution in respect of the related Preferred Stock
in connection with any liquidation, dissolution or winding up of our
business and the distribution has been distributed to the holders of the
related Depositary Receipts.
Charges of Preferred Stock Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the Deposit Agreement. In addition, we will pay
the fees and expenses of the Preferred Stock Depositary in connection with the
performance of its duties under the Deposit Agreement. Holders of Depositary
Receipts will pay transfer and other taxes and governmental charges and any
other charges that are stated to be their responsibility in the Deposit
Agreement.
Resignation and Removal of Depositary
The Preferred Stock Depositary may resign at any time by delivering notice
to us. We also may remove the Preferred Stock Depositary at any time.
Resignations or removals will take effect upon the appointment of a successor
Preferred Stock Depositary. This successor must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
Miscellaneous
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications that we send to the Preferred Stock
Depositary with respect to the related Preferred Stock.
Neither we nor the Preferred Stock Depositary will be liable if it is
prevented or delayed, by law or any circumstances beyond its control in
performing its obligations under the Deposit Agreement. Our obligations and
the Preferred Stock Depositary's obligations under the Deposit Agreement will
be limited to performance in good faith and without negligence or willful
misconduct of the duties described in the Deposit Agreement. Neither we nor
the Preferred Stock Depositary will be obligated to prosecute or defend any
legal proceeding relating to any
19
<PAGE>
Depositary Receipts, Depositary Shares or shares of Preferred Stock unless
satisfactory indemnity is furnished. We and the Preferred Stock Depositary may
rely on written advice of counsel or accountants, or information provided by
persons presenting shares of Preferred Stock for deposit, holders of
Depositary Receipts or other persons believed to be competent and authorized
to this information and on documents believed to be genuine.
If the Preferred Stock Depositary receives conflicting claims, requests or
instructions from any holders of Depositary Receipts, on the one hand, and us,
on the other hand, the Preferred Stock Depositary will be entitled to act on
the claims, requests or instructions received from us.
DESCRIPTION OF COMMON STOCK
We may issue (either separately or together with other securities) shares of
our Common Stock. Under our Restated Certificate of Incorporation, we are
authorized to issue up to 500,000,000 shares of our Common Stock. A prospectus
supplement relating to an offering of Common Stock, or other securities
convertible or exchangeable for, or exercisable into, Common Stock, will
describe the relevant terms, including the number of shares offered, any
initial offering price, and market price and dividend information, as well as,
if applicable, information on other related securities. See "Description of
Outstanding Capital Stock" below.
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
We have summarized certain terms and provisions of our outstanding capital
stock in this section. The summary is not complete. We have also filed our
Restated Certificate of Incorporation, our By-Laws and the Certificate of
Designation relating to the Series A Preferred Stock as exhibits to our Annual
Report on Form 10-K. You should read our Restated Certificate of Incorporation
and our By-Laws and the Certificate of Designation relating to the Series A
Preferred Stock for additional information before you purchase any of our
capital stock.
As of January 1, 1999, our authorized capital stock was 518,500,000 shares.
Those shares consisted of: (a) 500,000,000 shares of Common Stock, par value
$.01 per share, (b) 10,000,000 shares of Preferred Stock, par value $.01 per
share and (c) 8,500,000 shares of Class R Convertible Common Stock, par value
$.01 per share. As of January 1, 1999 there were 307,868,632 shares of Common
Stock, no shares of Preferred Stock and no shares of Class R Convertible
Common Stock outstanding.
COMMON STOCK
Subject to the senior rights of Preferred Stock which may from time to time
be outstanding, holders of Common Stock are entitled to receive dividends
declared by the Board of Directors out of funds legally available for their
payment. Upon dissolution and liquidation of our business, holders of Common
Stock are entitled to a ratable share of our net assets remaining after
payment to the holders of the Preferred Stock of the full preferential amounts
they are entitled to. All outstanding shares of Common Stock are fully paid
and nonassessable.
The holders of Common Stock are entitled to one vote per share for the
election of Directors and on all other matters submitted to a vote of
stockholders. Holders of Common Stock are not entitled to cumulative voting
for the election of Directors. They are not entitled to preemptive rights.
The transfer agent and registrar for the Common Stock is Norwest Bank
Minnesota, N.A.
PREFERRED STOCK
The Preferred Stock has priority over the Common Stock with respect to
dividends and to other distributions, including the distribution of assets
upon liquidation. The Board of Directors is authorized to fix and determine
the terms, limitations and relative rights and preferences of the Preferred
Stock, to establish series
20
<PAGE>
of Preferred Stock and to fix and determine the variations as among series. The
Board of Directors without stockholder approval could issue Preferred Stock
with voting and conversion rights which could adversely affect the voting power
of the holders of Common Stock. The Board of Directors has designated 500,000
shares of Series A Junior Participating Preferred Stock ("Participating
Preferred Stock"). Participating Preferred Stock will be issued in units
consisting of one one-thousandth of a share (the "Units") of Participating
Preferred Stock. Participating Preferred Stock is on a parity with the Common
Stock with respect to dividends and to other distributions, including the
distribution of assets on liquidation. Quarterly dividends per Unit equal the
amount of the quarterly dividend paid per share of Common Stock, when, as and
if declared by the Board of Directors. The holders of Units are entitled to one
vote per Unit, voting together with the Common Stock on all matters submitted
to the stockholders. As of the date of this Prospectus, there are no
outstanding shares of Preferred Stock.
ANTI-TAKEOVER PROVISIONS
We currently have provisions in our Restated Certificate of Incorporation and
By-Laws that could have an "anti-takeover" effect. The provisions in the
Restated Certificate of Incorporation include:
. a classified Board of Directors;
. a prohibition on our stockholders taking action by written consent;
. the requirement that special meetings of stockholders be called only by
the Board of Directors or the Chairman of the Board; and
. the requirement of the affirmative vote of at least 66-2/3% of our
outstanding shares of stock entitled to vote thereon to adopt, repeal,
alter, amend or rescind our By-Laws.
The By-Laws contain specific procedural requirements for the nomination of
directors and the introduction of business by a stockholder of record at an
annual meeting of stockholders where such business is not specified in the
notice of meeting or brought by or at the discretion of the Board of Directors.
In addition to these provisions, the Board of Directors has adopted a
stockholder's rights plan, under which rights were distributed in a dividend.
These rights entitle the holder to acquire Units of Participating Preferred
Stock, which is exercisable upon the occurrence of certain events, including
the acquisition by a person or group of a specified percentage of the Common
Stock.
PLAN OF DISTRIBUTION
We may sell the offered securities (1) through agents, (2) through
underwriters, (3) to dealers or (4) directly to one or more purchasers.
BY AGENTS
Offered securities may be sold through agents designated by us. Unless
otherwise indicated in a prospectus supplement, the agents will use their best
efforts to solicit purchases for the period of their appointment.
BY UNDERWRITERS
If underwriters are used in the sale, the offered securities will be acquired
by the underwriters for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the securities of the series offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
TO DEALERS
If a dealer is used in the sale, we will sell the offered securities to the
dealer, as principal. The dealer may then resell those securities to the public
at varying prices to be determined by the dealer at the time of resale.
DIRECT SALES
We may also sell offered securities directly to institutional investors or
others. In this case, no underwriters or agents would be involved.
21
<PAGE>
DELAYED DELIVERY CONTRACTS
We may authorize underwriters, dealers and agents to solicit offers by
certain institutional investors to purchase offered securities under contracts
providing for payment and delivery on a future date specified in the prospectus
supplement. The prospectus supplement will also describe the public offering
price for the securities and the commission payable for solicitation of these
delayed delivery contracts. Delayed delivery contracts will contain definite
fixed price and quantity terms. The obligations of a purchaser under these
delayed delivery contracts will be subject to only two conditions:
. that the institution's purchase of the securities at the time of
delivery of the securities is not prohibited under the law of any
jurisdiction to which the institution is subject; and
. that we shall have sold to the underwriters the total principal amount
of the offered securities, less the principal amount covered by the
delayed delivery contracts.
GENERAL INFORMATION
Underwriters, dealers, agents and direct purchasers that participate in the
distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933, as amended (the "Securities Act"), and any discounts or
commissions they receive from us and any profit on the resale of the offered
securities by them may be treated as underwriting discounts and commissions
under the Securities Act. Any underwriters, dealers or agents will be
identified and their compensation described in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the
Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their
businesses.
The place and time of delivery of the offered securities will be described in
the prospectus supplement.
LEGAL MATTERS
Willkie Farr & Gallagher will issue an opinion for us about the legality of
the offered securities. Any underwriters will be advised about other issues
relating to any offering by their own legal counsel.
EXPERTS
The consolidated balance sheets of Level 3 Communications, Inc. as of
December 28, 1996 and December 27, 1997, and the related statements of
earnings, changes in stockholders' equity, and cash flows for each of three
years in the period ended December 27, 1997, as well as the consolidated
balance sheets of RCN Corporation and Subsidiaries as of December 31, 1996 and
1997 and the related statements of operations, changes in stockholders' equity,
and cash flows for each of the three years in the period ended December 31,
1997, as well as the balance sheets of Kiewit Construction & Mining Group, a
business group of Peter Kiewit Sons', Inc., as of December 28, 1996 and
December 27, 1997 and the related statements of earnings, changes in
stockholders' equity, and cash flows for each of the three years in the period
ended December 27, 1997, as well as the consolidated balance sheets of the
Diversified Group, a business group of Peter Kiewit Sons', Inc. as of December
28, 1996 and December 27, 1997 and the related statements of earnings, changes
in stockholders' equity, and cash flows for each of the three years in the
period ended December 27, 1997, incorporated by reference in this registration
statement, have been incorporated herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the Securities are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee.................................. $973,000
"Blue Sky" Fees and Expenses..................................... 15,000*
Printing and Engraving Expenses.................................. 200,000*
Legal Fees and Expenses.......................................... 200,000*
Fees of Rating Agencies.......................................... 60,000*
Accounting Fees and Expenses..................................... 100,000*
Fees of Indenture Trustees (including counsel fees).............. 20,000*
Miscellaneous.................................................... 57,000*
----------
Total.......................................................... $1,625,000*
==========
</TABLE>
- --------
* Estimated and subject to future contingencies.
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final action of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or
agent in defending such action, provided that the director or officer
undertakes to repay such amount if it shall ultimately be determined that he
or she is not entitled to be indemnified by the corporation. A corporation may
indemnify such person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if he or she acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-law,
agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Article XI of the Company's
Restated Certificate of Incorporation (the "Certificate") and the Company's
By-laws (the "By-laws") provide that the Company shall indemnify each person
who is or was a director, officer or employee of the Company (including the
heirs, executors, administrators or estate of such person) or is or was
serving at the request of the Company as director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise, to
the fullest extent permitted under subsections 145(a), (b), and (c) of the
DGCL or any successor statute. The indemnification
II-1
<PAGE>
provided by the Certificate and the By-laws shall not be deemed exclusive of
any other rights to which any of those seeking indemnification or advancement
of expenses may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Expenses (including attorneys'
fees) incurred in defending a civil, criminal, administrative or investigative
action, suit or proceeding upon receipt of an undertaking by or on behalf of
the indemnified person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company.
The Certificate further provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) for any transaction from which the director derived an improper
personal benefit. If the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Company shall be eliminated or limited to the
fullest extent permitted by the DGCL as so amended.
The By-laws provide that the Company may purchase and maintain insurance on
behalf of its directors, officers, employees and agents against any
liabilities asserted against such persons arising out of such capacities.
ITEM 16. Exhibits.
<TABLE>
<C> <C> <S>
1.1 -- Form of Underwriting Agreement for Debt Securities*
1.2 -- Form of Underwriting Agreement for Equity Securities*
4.1 -- Form of Senior Indenture
4.2 -- Form of Subordinated Indenture
4.3 -- Form of Certificate of Designation for the Preferred Stock (together
with Preferred Stock certificate)*
4.4 -- Form of Senior Debt Security*
4.5 -- Form of Subordinated Debt Security*
4.6 -- Form of Deposit Agreement
4.7 -- The instruments defining the rights of the holders of the long-term
debt securities of the Registrant are omitted pursuant to Section
(b)(4)(iii)(A) of Item 601 of Regulation S-K. Registrant agrees to
furnish supplementally copies of these instruments to the Securities
and Exchange Commission upon request.
5 -- Opinion of Willkie Farr & Gallagher
12 -- Statement Regarding Computation of Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Willkie Farr & Gallagher (included in Exhibit 5)
24 -- Power of Attorney+
25.1 -- Statement of Eligibility of Senior Trustee on Form T-1
25.2 -- Statement of Eligibility of Subordinated Trustee on Form T-1
</TABLE>
- --------
* To be filed by amendment or incorporated by reference to the extent
applicable in connection with an offering.
+Previously filed.
ITEM 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in registration statements on Form S-3 or
Form S-8 and the periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the Securities offered
herein, and the offering of such Securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the Securities offered herein, and the offering of such Securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person, in connection with
the Securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in such Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Omaha, State of
Nebraska, on the 3rd day of February, 1999.
Level 3 Communications, Inc.
/s/ Thomas C. Stortz
By: _________________________________
Name: Thomas C. Stortz
Title: Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons, in the
capacities and on the dates indicated.
Name Title Date
* Chairman of the
- ------------------------------------- Board February 3,
Walter Scott, Jr. 1999
* President, Chief
- ------------------------------------- Executive Officer February 3,
James Q. Crowe and Director 1999
* Executive Vice February 3,
- ------------------------------------- President, Chief 1999
R. Douglas Bradbury Financial Officer
and Director
(principal
financial officer)
* Controller February 3,
- ------------------------------------- (principal 1999
accounting officer)
Eric J. Mortensen
II-4
<PAGE>
NAME TITLE DATE
* Director
- ------------------------------------- February 3,
William L. Grewcock 1999
* Director
- ------------------------------------- February 3,
Richard R. Jaros 1999
* Director
- ------------------------------------- February 3,
Robert E. Julian 1999
* Director
- ------------------------------------- February 3,
David C. McCourt 1999
Director February ,
- ------------------------------------- 1999
Kenneth E. Stinson
Director February ,
- ------------------------------------- 1999
Michael B. Yanney
Neil J. Eckstein, by signing his name below, signs this document on behalf of
each of the above-named persons specified by an asterisk (*), pursuant to a
power of attorney duly executed by such persons, filed with the Securities and
Exchange Commission in the Registrant's Registration Statement on December 14,
1998.
Attorney-in-fact
/s/ Neil J. Eckstein
- -------------------------------------
Neil J. Eckstein
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Page
Exhibit Description Number
------- ----------- ----------
<C> <C> <S> <C>
1.1 -- Form of Underwriting Agreement for Debt Securities*
1.2 -- Form of Underwriting Agreement for Equity
Securities*
4.1 -- Form of Senior Indenture
4.2 -- Form of Subordinated Indenture
4.3 -- Form of Certificate of Designation for the Preferred
Stock (together with Preferred Stock certificate)*
4.4 -- Form of Senior Debt Security*
4.5 -- Form of Subordinated Debt Security*
4.6 -- Form of Deposit Agreement
4.7 -- The instruments defining the rights of the holders
of the long-term debt securities of the Registrant
are omitted pursuant to Section (b)(4)(iii)(A) of
Item 601 of Regulation S-K. Registrant agrees to
furnish supplementally copies of these instruments
to the Securities and Exchange Commission upon
request.
5 -- Opinion of Willkie Farr & Gallagher
12 -- Statement Regarding Computation of Ratio of Earnings
to Fixed Charges and Preferred Stock Dividends
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Willkie Farr & Gallagher (included in
Exhibit 5)
24 -- Power of Attorney+
25.1 -- Statement of Eligibility of Senior Trustee on Form
T-1
25.2 -- Statement of Eligibility of Subordinated Trustee on
Form T-1
</TABLE>
- --------
* To be filed by amendment or incorporated by reference to the extent
applicable in connection with an offering.
+Previously filed.
<PAGE>
EXHIBIT 4.1
______________________________________________
LEVEL 3 COMMUNICATIONS, INC.
TO
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
_______________________
Indenture
Dated as of __________, ____
_______________________
Senior Debt Securities
______________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION....................................... 1
SECTION 101. Definitions.............................................. 1
Act................................................................. 2
Additional Amounts.................................................. 2
Affiliate........................................................... 2
Authenticating Agent................................................ 2
Authorized Newspaper................................................ 2
Bearer Security..................................................... 2
Board of Directors.................................................. 3
Board Resolution.................................................... 3
Business Day........................................................ 3
CEDEL............................................................... 3
Commission.......................................................... 3
Common Stock........................................................ 3
Company............................................................. 3
Company Request..................................................... 3
Company Order....................................................... 3
Conversion Date..................................................... 4
Conversion Event.................................................... 4
Corporate Trust Office.............................................. 4
corporation......................................................... 4
coupon.............................................................. 4
Currency Indexed Note............................................... 4
Defaulted Interest.................................................. 4
Dollar.............................................................. 4
ECU................................................................. 4
Election Date....................................................... 4
Euroclear........................................................... 4
European Communities................................................ 4
European Monetary System............................................ 5
Event of Default.................................................... 5
Exchange Rate Agent................................................. 5
Exchange Rate Officer's Certificate................................. 5
Fair Value.......................................................... 5
Foreign Currency.................................................... 5
Government Obligations.............................................. 5
Holder.............................................................. 6
Indenture........................................................... 6
Indexed Security.................................................... 6
interest............................................................ 6
Interest Payment Date............................................... 6
Market Exchange Rate................................................ 6
Material Subsidiary................................................. 7
Maturity............................................................ 7
Officers' Certificate............................................... 7
Opinion of Counsel.................................................. 8
Original Issue Discount Security.................................... 8
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Outstanding........................................................... 8
Paying Agent.......................................................... 9
Person................................................................ 9
Place of Payment...................................................... 9
Predecessor Security.................................................. 9
Preferred Stock....................................................... 10
Redemption Date....................................................... 10
Redemption Price...................................................... 10
Registered Security................................................... 10
Regular Record Date................................................... 10
Repayment Date........................................................ 10
Repayment Price....................................................... 10
Responsible Officer................................................... 10
Security.............................................................. 10
Security Register..................................................... 11
Security Registrar.................................................... 11
Special Record Date................................................... 11
Stated Maturity....................................................... 11
Subsidiary............................................................ 11
Trust Indenture Act................................................... 11
TIA................................................................... 11
Trustee............................................................... 11
United States......................................................... 11
United States person.................................................. 11
Valuation Date........................................................ 12
Yield to Maturity..................................................... 12
SECTION 102. Compliance Certificates and Opinions....................... 12
SECTION 103. Form of Documents Delivered to Trustee..................... 12
SECTION 104. Acts of Holders............................................ 13
SECTION 105. Notices, etc., to Trustee and Company...................... 15
SECTION 106. Notice to Holders; Waiver.................................. 15
SECTION 107. Effect of Headings and Table of Contents................... 16
SECTION 108. Successors and Assigns..................................... 17
SECTION 109. Separability Clause........................................ 17
SECTION 110. Benefits of Indenture...................................... 17
SECTION 111. Governing Law.............................................. 17
SECTION 112. Legal Holidays............................................. 17
ARTICLE TWO SECURITIES FORMS............................................... 17
SECTION 201. Forms of Securities........................................ 17
SECTION 202. Form of Trustee's Certificate of
Authentication........................................... 18
SECTION 203. Securities Issuable in Global Form......................... 18
ARTICLE THREE THE SECURITIES............................................... 19
SECTION 301. Amount Unlimited; Issuable in Series....................... 19
SECTION 302. Denominations.............................................. 24
SECTION 303. Execution, Authentication, Delivery and
Dating................................................... 24
SECTION 304. Temporary Securities....................................... 27
SECTION 305. Registration, Registration of Transfer and
Exchange................................................. 30
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................... 34
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset....................... 35
SECTION 308. Extension of Maturity...................................... 39
SECTION 309. Persons Deemed Owners...................................... 40
SECTION 310. Cancellation............................................... 41
SECTION 311. Computation of Interest.................................... 42
SECTION 312. Currency and Manner of Payments in Respect
of Securities............................................ 42
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent...................................... 47
ARTICLE FOUR SATISFACTION AND DISCHARGE.................................... 47
SECTION 401. Satisfaction and Discharge of Indenture.................... 47
SECTION 402. Application of Trust Funds................................. 49
ARTICLE FIVE REMEDIES...................................................... 49
SECTION 501. Events of Default.......................................... 49
SECTION 502. Acceleration of Maturity; Rescission and
Annulment................................................ 52
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................... 53
SECTION 504. Trustee May File Proofs of Claim........................... 54
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons...................... 54
SECTION 506. Application of Money Collected............................. 55
SECTION 507. Limitation on Suits........................................ 55
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, and Interest
and Additional Amounts................................... 56
SECTION 509. Restoration of Rights and Remedies......................... 56
SECTION 510. Rights and Remedies Cumulative............................. 56
SECTION 511. Delay or Omission Not Waiver............................... 57
SECTION 512. Control by Holders of Securities........................... 57
SECTION 513. Waiver of Past Defaults.................................... 57
SECTION 514. Waiver of Usury, Stay or Extension Laws.................... 58
SECTION 515. Undertaking for Costs...................................... 58
ARTICLE SIX THE TRUSTEE.................................................... 58
SECTION 601. Notice of Defaults......................................... 58
SECTION 602. Certain Rights of Trustee.................................. 59
SECTION 603. Not Responsible for Recitals or Issuance of
Securities............................................... 60
SECTION 604. May Hold Securities........................................ 60
SECTION 605. Money Held in Trust........................................ 61
SECTION 606. Compensation and Reimbursement............................. 61
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.................................... 62
SECTION 608. Resignation and Removal; Appointment of
Successor................................................ 62
SECTION 609. Acceptance of Appointment by Successor..................... 64
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business................................... 65
SECTION 611. Appointment of Authenticating Agent........................ 65
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY.............................................. 68
SECTION 701. Disclosure of Names and Addresses of Holders............... 68
SECTION 702. Reports by Trustee......................................... 68
SECTION 703. Reports by Company......................................... 68
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders..................................... 69
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE
OR CONVEYANCE............................................ 69
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions............................ 69
SECTION 802. Rights and Duties of Successor Corporation................. 70
SECTION 803. Officers' Certificate and Opinion of Counsel............... 70
ARTICLE NINE SUPPLEMENTAL INDENTURES....................................... 71
SECTION 901. Supplemental Indentures Without Consent of
Holders.................................................. 71
SECTION 902. Supplemental Indentures with Consent of
Holders.................................................. 72
SECTION 903. Execution of Supplemental Indentures....................... 74
SECTION 904. Effect of Supplemental Indentures.......................... 74
SECTION 905. Conformity with Trust Indenture Act........................ 74
SECTION 906. Reference in Securities to Supplemental
Indentures............................................... 74
ARTICLE TEN COVENANTS...................................................... 74
SECTION 1001. Payment of Principal, Premium, if any, and
Interest and Additional Amounts.......................... 74
SECTION 1002. Maintenance of Office or Agency............................ 75
SECTION 1003. Money for Securities Payments to Be Held in
Trust.................................................... 77
SECTION 1004. Statement as to Compliance................................. 78
SECTION 1005. Additional Amounts......................................... 79
ARTICLE ELEVEN REDEMPTION OF SECURITIES.................................... 80
SECTION 1101. Applicability of Article................................... 80
SECTION 1102. Election to Redeem; Notice to Trustee...................... 80
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed................................................. 80
SECTION 1104. Notice of Redemption....................................... 81
SECTION 1105. Deposit of Redemption Price................................ 82
SECTION 1106. Securities Payable on Redemption Date...................... 83
SECTION 1107. Securities Redeemed in Part................................ 84
SECTION 1108. Conversion Arrangement on Call for
Redemption............................................... 84
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
ARTICLE TWELVE SINKING FUNDS............................................... 85
SECTION 1201. Applicability of Article................................... 85
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities............................................... 85
SECTION 1203. Redemption of Securities for Sinking Fund.................. 86
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS........................ 86
SECTION 1301. Applicability of Article................................... 86
SECTION 1302. Repayment of Securities.................................... 86
SECTION 1303. Exercise of Option......................................... 87
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable................................... 88
SECTION 1305. Securities Repaid in Part.................................. 89
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE........................ 89
SECTION 1401. Applicability of Article: Company's Option
to Effect Defeasance or Covenant
Defeasance............................................... 89
SECTION 1402. Defeasance and Discharge................................... 89
SECTION 1403. Covenant Defeasance........................................ 90
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance............................................... 91
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions............................................... 93
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES.......................... 94
SECTION 1501. Purposes for Which Meetings May Be Called.................. 94
SECTION 1502. Call, Notice and Place of Meetings......................... 94
SECTION 1503. Persons Entitled to Vote at Meetings....................... 95
SECTION 1504. Quorum; Action............................................. 95
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.................................. 96
SECTION 1506. Counting Votes and Recording Action of
Meetings................................................. 97
ARTICLE SIXTEEN CONVERSION OF SECURITIES................................... 98
SECTION 1601. Applicability of Article................................... 98
SECTION 1602. Right of Holders to Convert Securities into
Common Stock............................................. 98
SECTION 1603. Issuance of Shares of Common Stock on
Conversions.............................................. 99
SECTION 1604. No Payment or Adjustment for Interest or
Dividends................................................ 100
SECTION 1605. Adjustment of Conversion Price............................. 100
SECTION 1606. No Fractional Shares to be Issued.......................... 105
SECTION 1607. Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance................ 105
SECTION 1608. Notice to Holders of the Securities of a
Series Prior to Taking Certain Types of
Action................................................... 106
</TABLE>
v
<PAGE>
<TABLE>
<S> <C>
SECTION 1609. Covenants to Reserve Shares for Issuance on
Conversion of Securities................................. 107
SECTION 1610. Compliance with Governmental Requirements.................. 107
SECTION 1611. Payment of Taxes upon Certificates for
Shares Issued upon Conversion............................ 107
SECTION 1612. Trustee's Duties with Respect to Conversion
Provisions............................................... 108
SECTION 1613. Conversion of Securities Into Preferred
Stock.................................................... 108
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vi
<PAGE>
LEVEL 3 COMMUNICATIONS, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of __________, ____
Trust Indenture Act Section Indenture Section
Section 310(a)(1).................................. 607
(a)(2).................................. 607
(b)..................................... 607, 608
Section 312(c) .................................... 701
Section 313(a) .................................... 702
(c)..................................... 702
Section 314(a) .................................... 703
(a)(4).................................. 1006
(c)(1).................................. 102
(c)(2).................................. 102
(e)..................................... 102
Section 315(b) .................................... 601
Section 316(a) (last sentence)..................... 101 ("Outstanding")
(a)(1)(A)............................... 502, 512
(a)(1)(B)............................... 513
(b)..................................... 508
Section 317(a)(1).................................. 503
(a)(2).................................. 504
Section 318(a) .................................... 111
(c)..................................... 111
______________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Reference is also made to Section 318(c) of the Trust Indenture Act of
1939, which provides that the provisions of Section 310 to and including Section
317 of the Trust Indenture Act of 1939 are a part of and govern every qualified
indenture, whether or not physically contained therein.
vii
<PAGE>
INDENTURE, dated as of ___________, ____, between LEVEL 3
COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company"),
having its principal office at 3555 Farnam Street, Omaha, Nebraska 68131 and IBJ
WHITEHALL BANK & TRUST COMPANY f/k/a IBJ Schroder Bank & Trust Company, a
corporation duly organized and existing under the laws of the State of New York,
as Trustee hereunder (hereinafter called the "Trustee"), having its Corporate
Trust Office at One State Street, New York, New York 10004.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rate or pursuant to the formula, to mature at such times
and to have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
-----------
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash
<PAGE>
transaction" and "self-liquidating paper", as used in TIA Section 311,
shall have the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
---
in Section 104.
"Additional Amounts" means any additional amounts which are required
------------------
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
--------------------
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bearer Security" means any Security established pursuant to Section
---------------
201 which is payable to bearer.
-2-
<PAGE>
"Board of Directors" means the board of directors of the Company, the
------------------
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
------------
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
-----
its successor.
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, with respect to the Company, its common stock,
------------
$.01 par value, and with respect to any Material Subsidiary, stock of any class,
however designated, except stock which is non-participating beyond fixed
dividend and liquidation preferences and the holders of which have either no
voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Material Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first
-------
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order signed in the name of the Company by its Chairman of the Board,
the President or a Vice President, and by its Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
-3-
<PAGE>
"Conversion Date" has the meaning specified in Section 312(d).
---------------
"Conversion Event" means the cessation of use of (i) a Foreign
----------------
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at which, at
----------------------
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at One State Street,
New York, New York 10004.
"corporation" includes corporations, associations, companies and
-----------
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Currency Indexed Note" means any Security with the amount of
---------------------
principal payments determined by reference to an index currency.
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Dollar" or means a dollar or other equivalent unit in such coin or
------
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
---
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
-------------
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
--------------------
European Coal and Steel Community and the European Atomic Energy Community.
-4-
<PAGE>
"European Monetary System" means the European Monetary System
------------------------
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
----------------
"Exchange Rate Agent", with respect to Securities of or within any
-------------------
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
-----------------------------------
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation, signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Fair Value", when used with respect to Common Stock, means the fair
----------
value thereof as determined in good faith by the Board of Directors.
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
----------------------
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
-5-
<PAGE>
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
------
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
-------- -------
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
---------
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
----------------
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1005,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
---------------------
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such
-6-
<PAGE>
Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Material Subsidiary" means any Subsidiary with stockholders' equity
-------------------
which constituted at least 15% of the Company's consolidated stockholders'
equity, all as determined as of the date of the Company's most recently prepared
quarterly financial statements in accordance with generally accepted accounting
principles.
"Maturity", when used with respect to any Security, means the date on
--------
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
-7-
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company or who may be an employee of or other counsel for the
Company and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
--------------------------------
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto, provided
--------
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(v) Securities converted into Common Stock or Preferred Stock
in accordance with or as contemplated by this Indenture, if the terms of
such Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
-8-
<PAGE>
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (iv) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
----------------
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same
-9-
<PAGE>
debt as that evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains.
"Preferred Stock" means, with respect to the Company, its preferred
---------------
stock, $.01 par value.
"Redemption Date", when used with respect to any Security to be
---------------
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
-------------------
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
--------------
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
---------------
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
-------------------
any officer within the Corporate Trust Agencies and Administration of the
Trustee, including any vice president, any assistant vice president (whether or
not designated by a number or a word or words added before or after the title
"vice president"), any assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
-------- -------
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall
-10-
<PAGE>
have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
-------------------
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means a corporation a majority of the outstanding voting
----------
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having 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.
"Trust Indenture Act" or "TIA means the Trust Indenture Act of 1939,
------------------- ---
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -------- -------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust
-11-
<PAGE>
the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
--------------
"Yield to Maturity" means the yield to maturity, computed at the time
-----------------
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 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
-12-
<PAGE>
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 as to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations 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 as 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
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any
-13-
<PAGE>
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may be proved in any
reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to
-14-
<PAGE>
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
--------
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) 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, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. 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 shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust and Agencies Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner
-15-
<PAGE>
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents
-16-
<PAGE>
are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements
----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or
---------------------
in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and
-------------
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, provided that
--------
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
-------------------
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially
-17-
<PAGE>
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:_____________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall
-18-
<PAGE>
be made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in
-19-
<PAGE>
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series, any or all of the following, as applicable (each of which (except
for the matters set forth in clauses (1), (2) and (15) below), if so provided,
may be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange or
conversion and notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
-20-
<PAGE>
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of Securities of the
series that is convertible in accordance with the provisions of this
Indenture or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any) or interest or Additional Amounts,
if any, on the Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to
-21-
<PAGE>
be payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be made,
and the time and manner of determining the exchange rate between the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated to be payable
and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable, in
each case in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any
-22-
<PAGE>
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment Date
will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent, if any;
(24) the obligation, if any, of the Company to permit the conversion of
the Securities of such series into the Company's Common Stock or Preferred
Stock, and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price, any requirements relative to reservation of shares for purposes of
conversion and any other provision in addition to or in lieu of those set
forth in this Indenture or any indenture supplemental hereto relative to
such obligation); and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered
-23-
<PAGE>
Securities, as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution (subject to Section 303) and set forth in such
Officers' Certificate or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the
-24-
<PAGE>
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
--------
however, that, in connection with its original issuance, no Bearer Security
- -------
shall be mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series of
- -------- -------
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or CEDEL,
as the case may be, in the form set forth in Exhibit A-1 to this Indenture or
such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate
-25-
<PAGE>
insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, that no Event of Default with respect
to any of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially
-26-
<PAGE>
in the form provided for herein duly executed by the Trustee by manual signature
of an authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 310 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee or authenticating agent shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no definitive
-------- -------
Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided further that a definitive Bearer Security shall be
-------- -------
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 303. Until so exchanged, the temporary
-27-
<PAGE>
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then any such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
--------
however, that, unless otherwise specified in such temporary global Security,
- -------
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
-------- -------
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a
-28-
<PAGE>
series in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or CEDEL, as the case may be, to request
such exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no earlier
than 15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this
-29-
<PAGE>
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the Trustee prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided. In the
event that the Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency of the Company. Whenever any such
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
-30-
<PAGE>
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
--------
however, that, except as otherwise provided in Section 1002, interest
- -------
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee or
authenticating agent upon receipt of any required documentation shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is The Depository Trust Company ("DTC"), then, unless the terms
-31-
<PAGE>
of such global Security expressly permit such global Security to be exchanged in
whole or in part for definitive Securities, a global Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a nominee
of DTC to DTC, or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any
time DTC notifies the Company that it is unwilling or unable to continue as
depositary for the applicable global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Company shall
appoint a successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global Security or
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or
ineligibility; (y) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depositary for such global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or issuable in the form
of one or more global Securities shall no longer be represented by such global
Security or Securities, then the Company shall execute, and the Trustee shall
authenticate and deliver, definitive Securities of like series, rank, tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial owner of an
interest in a permanent global Security is otherwise entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Company shall execute, and the Trustee shall authenticate and
deliver, definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered for exchange by
DTC or such other depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose;
provided, however, that no such exchanges may occur during a period beginning at
- -------- -------
the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided
--------
further that no Bearer Security delivered in exchange for a portion of a
- -------
permanent global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is
-32-
<PAGE>
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and the opening
of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption
-33-
<PAGE>
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
--------
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
-------- -------
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
-34-
<PAGE>
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset. (a) Except as otherwise specified with respect to a series of
- --------------
Securities in accordance with the provisions of Section 301, interest on any
Registered Security that is payable, and is punctually paid or duly provided
for, on or prior to noon on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest on any
-------- -------
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) transfer to an account maintained by the payee
located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received
-35-
<PAGE>
by it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series outside the United States) on
any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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 Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than
-36-
<PAGE>
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it appears
in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may
-37-
<PAGE>
exercise such option with respect to such Security by notifying the Trustee of
such exercise and the related information referred to below at least 50 but not
more than 60 days prior to an Optional Reset Date for such Note. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so, upon receipt of such information (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, by notifying the Trustee not later than
20 days prior to the Optional Reset Date, the Company may, at its option, revoke
the interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest
rate, if applicable) that is higher than the interest rate (or the spread or
spread multiplier, if applicable) provided for in the Reset Notice, for the
Subsequent Interest Period. Promptly after receipt of such election, the
Trustee shall transmit, in the manner provided for in Section 106, notice of
such higher interest rate (or such higher spread or spread multiplier, if
applicable) to the Holder of such Security. Such notice to the Trustee shall be
irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment
-38-
<PAGE>
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Extension of Maturity. The provisions of this Section
---------------------
308 may be made applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 301) (any series of Securities to which the provisions
of this Section 308 are made applicable are hereinafter referred to as the
"Renewable Securities"). The Renewable Securities shall mature on the initial
Stated Maturity thereof unless the maturity of all or any portion of the
principal amount thereof is extended pursuant to the procedures described below.
On the Interest Payment Dates in each year, the maturity of the Renewable
Securities will be extended to the Interest Payment Date occurring twelve months
after such Interest Payment Date, unless the Holder thereof elects to terminate
the automatic extension of the maturity of the Renewable Securities or of any
portion thereof having a principal amount of $100,000 or any multiple of $1,000
in excess thereof by delivering a notice to such effect to the Security
Registrar for the Renewable Securities not less than 25 nor more than 35 days
prior to such Interest Payment Date. Such notice shall be provided in the
manner described in the last paragraph of this Section 308. Such option may be
exercised by a Holder with respect to less than the entire principal amount of
such Holder's Renewable Securities, provided that the principal amount for which
such option is not exercised is at least $100,000 or any larger amount that is
an integral multiple of $1,000. Notwithstanding the foregoing, the maturity of
the Renewable Securities may not be extended beyond the date set forth on the
face of such Security as the final maturity date (the "Final Maturity Date").
If the Holder elects to terminate the automatic extension of the maturity of any
portion of the principal amount of the Renewable Securities, such portion will
become due and payable on the Interest Payment Date falling six months after the
Interest Payment Date prior to which the Holder made such election.
An election to terminate the automatic extension of maturity may be
revoked as to any portion of the Renewable Securities having a principal amount
of $100,000 or any multiple of $1,000 in excess thereof by delivering a notice
to such effect to the Security Registrar on any day following the effective date
of the election to terminate the automatic extension of maturity and prior to
the date 10 days before the date on which such portion would otherwise mature.
Such notice shall be provided in the manner described in the last paragraph of
this Section 308. Such a revocation may be made for less than the entire
principal
-39-
<PAGE>
amount of the Renewable Securities for which the automatic extension of maturity
has been terminated; provided that the principal amount of the Renewable
Securities for which the automatic extension of maturity has been terminated and
for which such a revocation has not been made is at least $100,000 or any larger
amount that is an integral multiple of $1,000. Notwithstanding the foregoing, a
revocation may not be made during the period from and including a Regular Record
Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of
the Renewable Securities, if not revoked as described above by the Holder making
the election or any subsequent Holder, will be binding upon such subsequent
Holder.
The Renewable Securities may be redeemed in whole or in part at the
option of the Company on the Interest Payment Dates in each year at a redemption
price of 100% of the principal amount of the Renewable Securities to be
redeemed, together with interest accrued and unpaid thereon to the date of
redemption. Notice of redemption will be provided by mailing a notice of such
redemption to each Holder by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to the
respective address of each Holder as that address appears upon the books
maintained by the Registrar.
Notwithstanding the foregoing, by notifying the Trustee not later than
20 days before the original Stated Maturity of such Security, the Company may,
at its option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period. Promptly after
receipt of such notice, the Trustee shall transmit, in the manner provided for
in Section 106, notice of such higher interest rate to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the Stated Maturity is extended will bear such higher interest rate.
In order to deliver notice to the Security Registrar for purposes of
terminating (with respect to all or a portion of a Renewable Security) an
automatic extension of maturity, the Holder must follow the procedures set forth
in Article Thirteen for repayment at the option of Holders, except that the
period for delivery of notification to the Trustee shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if the
Holder has so elected to tender any Renewable Security for repayment, the Holder
may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered
-40-
<PAGE>
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered
------------
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until
-41-
<PAGE>
the same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and the Trustee shall deliver a certificate of such destruction to the
Company.
SECTION 311. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
---------------------------------------------
Securities. (a) Unless otherwise specified with respect to any Securities
- ----------
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on, and Additional Amounts, if any, in respect of any Registered or Bearer
Security of such series will be made in the currency or currencies, currency
unit or units or composite currency or currencies in which such Registered
Security or Bearer Security, as the case may be, is payable. The provisions of
this Section 312 may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any) or interest, if any, on and Additional Amounts, if any, in
respect of such Registered Securities in any of the currencies, currency units
or composite currencies which may be designated for such election by delivering
to the Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such currency, currency unit or composite currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
for such series of Registered Securities (but any such change must be made not
later than the close of business on the Election Date immediately preceding the
next payment date to be effective for the payment to be made on such payment
date and no such change of election may be made with respect to payments to be
made on any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to
-42-
<PAGE>
which the Company has deposited funds pursuant to Article Four or Fourteen or
with respect to which a notice of redemption has been given by the Company or a
notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
currency or currencies, currency unit or units or composite currency or
currencies as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the currency or currencies, currency
unit or units or composite currency or currencies in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on, and Additional Amounts, if any,
in respect of the Registered Securities to be paid on such payment date,
specifying the amounts in such currency or currencies, currency unit or units or
composite currency or currencies so payable in respect of the Registered
Securities as to which the Holders of Registered Securities denominated in any
currency or currencies, currency unit or units or composite currency or
currencies shall have elected to be paid in another currency, currency unit or
composite currency as provided in paragraph (b) above. If the election referred
to in paragraph (b) above has been provided for pursuant to Section 301 and if
at least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar, Foreign
Currency or currencies, ECU or currency unit payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar, Foreign
Currency or currencies, ECU or currency unit amount receivable by Holders of
Registered Securities who have elected payment in a currency or currency unit as
provided in paragraph (b) above shall be determined by the Exchange Rate Agent
based on the highest bid quotation in The City of New York received at
approximately 11:00 A.M., New York City time, on the second Business Day (the
"Valuation Date") preceding the applicable payment date from three recognized
foreign exchange dealers for the purchase by the quoting dealer of the currency,
currency unit or composite currency in which such payment would otherwise be
made for the
-43-
<PAGE>
currency, currency unit or composite currency in which Holders have elected
payment for settlement on such payment date in the aggregate amount of the
currency, currency unit or composite currency in which such payment would
otherwise be made to such Holders and at which the applicable dealer commits to
execute a contract, and such determination shall be conclusive and binding for
all purposes, absent manifest error. If such bid quotations are not available,
payments will be made in the currencies, currency units or composite currencies
in which the Registered Securities are payable as if no election under paragraph
(b) above was made. All currency exchange costs will be borne by the Holders
making the election provided for in paragraph (b) above by deductions from
payments to such Holders.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, in respect of, the applicable Securities denominated or payable
in such Foreign Currency, the ECU or such other currency unit occurring after
the last date on which such Foreign Currency, the ECU or such other currency
unit was used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar amount to be paid by the Company to the Trustee of
each such series of Securities and by such Trustee or any Paying Agent to the
Holders of such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent in
the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any currency or currencies, currency
unit or units or composite currency or currencies shall have elected to be paid
in another currency or currencies, currency unit or units or composite currency
or currencies as provided in paragraph (b) above, and a Conversion Event occurs
with respect to such elected currency or currencies, currency unit or units or
composite currency or currencies, such Holder shall receive payment in the
currency or currencies, currency unit or units or composite currency or
currencies in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the currency or
currencies, currency unit or units or composite currency or currencies in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
-44-
<PAGE>
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit or
composite currency, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit or composite currency, including,
but not limited to, the ECU, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by
way of combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after
the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single currency equal to
the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall thereafter
be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount
of such Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the
-45-
<PAGE>
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to clause 13 of Section 301 by which the
written election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the appropriate series of Securities and all Holders of
such Securities denominated or payable in the relevant currency or currencies,
currency unit or units or composite currency or currencies. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to
-46-
<PAGE>
determine the accuracy or validity of such information independent of the
Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
------------------------------------------------------
Agent. (a) Unless otherwise specified pursuant to Section 301, if and so long
- -----
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies, currency unit or units or composite currency
or currencies into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, and Additional
Amounts, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies, currency unit or units or composite currency
or currencies).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such
-47-
<PAGE>
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1005), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series 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 Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee (A)
all amounts due and owing to the Trustee to the date of such deposit
and (B) as trust funds in trust for the purpose an amount in the
currency or currencies, currency unit or units or composite currency
or currencies in which the
-48-
<PAGE>
Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by 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 Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used
-----------------
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
-49-
<PAGE>
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company (including a default with respect to Securities
of any series other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness of the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $25,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall
have resulted in such indebtedness in an aggregate principal amount
exceeding $25,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
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 10% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of
-50-
<PAGE>
Default" hereunder; provided, however, that if such default under such
-------- -------
bond, debenture, note, mortgage, indenture or other instrument or evidence
of indebtedness shall be remedied or cured by the Company or waived
pursuant to such agreement or instrument, then, unless the Stated Maturity
of the Securities shall have been accelerated as provided herein, the Event
of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or the Holders. Subject to the provisions of
Section 601, the Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the Trustee shall have
actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder
of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
-51-
<PAGE>
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal
-52-
<PAGE>
of (or premium, if any) or interest on Securities of that series 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.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons 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
-53-
<PAGE>
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons. All rights of action and claims under this Indenture or
- ---------------------
any of the Securities or coupons
-54-
<PAGE>
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and
any Additional Amounts payable, 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 aggregate amounts due and payable on
such Securities and coupons for principal (and premium, if any), interest
and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series 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;
-55-
<PAGE>
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium, if any, and Interest and Additional Amounts. Notwithstanding any other
- ----------------------------------------------------
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent
-56-
<PAGE>
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
--------------------------------
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee 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 of
such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
-57-
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
------------------
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
-------- -------
case of a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Security of such
series, or in the payment of
-58-
<PAGE>
any sinking or purchase fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
-------- -------
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the
-59-
<PAGE>
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate or authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would
-60-
<PAGE>
have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest
on particular Securities or any coupons.
-61-
<PAGE>
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests. (a) There shall at all times be a Trustee hereunder which shall be
- ---------
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(b) The following indentures shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso contained
in TIA Section 310(b): (i) Indenture, dated as of April 28, 1998, between the
Company and the Trustee, relating to senior notes; and (ii) Indenture, dated as
of December 2, 1998, between the Company and the Trustee, relating to senior
discount notes.
SECTION 608. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If 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 with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
-62-
<PAGE>
(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of
-63-
<PAGE>
any series and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided for notices to the Holders of
Securities in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of
--------------------------------------
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on 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, subject nevertheless to its lien and claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor
-64-
<PAGE>
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
- --------
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
-----------------------------------
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes
-65-
<PAGE>
as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid 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. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, 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 further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve
-66-
<PAGE>
in the manner set forth in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
-67-
<PAGE>
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signature
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
--------------------------------------------
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each
------------------
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities if and as required in TIA Section 313(c) a brief report dated as of
such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
------------------
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered
-68-
<PAGE>
on a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- -------
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
-------- -------
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
-------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company may
- -------------------------------------------------------
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, (1) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a State thereof
-69-
<PAGE>
and such successor corporation shall expressly assume the due and punctual
payment of the principal of (and premium, if any) and any interest (including
all Additional Amounts, if any, payable pursuant to Section 1005) on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture, complying with Article Nine
hereof, satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, lease or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 802. Rights and Duties of Successor Corporation. In case of
------------------------------------------
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. The
--------------------------------------------
Trustee shall receive and shall be entitled to rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
-70-
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
-------- -------
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the
-71-
<PAGE>
Holders of Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or 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 provisions shall not
--------
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
--------
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities
-72-
<PAGE>
and any related coupons 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 premium, if
any, on) or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1005 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies 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, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513, 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 right of Holders to convert their Securities, if
convertible, upon the terms established pursuant to or in accordance with
the provisions of this Indenture.
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.
-73-
<PAGE>
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest and
-------------------------------------------------------
Additional Amounts. The Company covenants and agrees for the benefit of the
- ------------------
Holders of each series of
-74-
<PAGE>
Securities that it will duly and punctually pay prior to noon New York City time
on any date of payment the principal of (and premium, if any) and interest on
and any Additional Amounts payable in respect of the Securities of that series
in accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1005 in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable only as Registered Securities, the Company shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of that series pursuant
to Section 1005) or conversion; provided, however, that if the Securities of
-------- -------
that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations
-75-
<PAGE>
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1005) at the offices specified in the Security,
in London, England, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
-------- -------
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1005) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
Additional Amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of 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 accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with
-76-
<PAGE>
respect to a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the Company in the
Borough of Manhattan, The City of New York, and initially appoints the Trustee
at its Corporate Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts 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
-77-
<PAGE>
(1) hold all sums held by it for the payment of principal of (and
premium, if any) 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 such payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which 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 sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if
any), or interest or Additional Amounts has become due and payable shall be paid
to the Company upon 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 of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, 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 notice to be mailed to the
Holders or published once in an Authorized Newspaper to the effect 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 mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement as to Compliance. The Company will deliver
--------------------------
to the Trustee, within 120 days after the end of each fiscal year (which as of
the date hereof is December 31), a
-78-
<PAGE>
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1005. Additional Amounts. If any Securities of a series
------------------
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-
-79-
<PAGE>
mentioned certificate, then the Trustee or such Paying Agent shall be entitled
(i) to assume that no such withholding or deduction is required with respect to
any payment of principal or interest with respect to any Securities of a series
or related coupons until it shall have received a certificate advising otherwise
and (ii) to make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Company's not furnishing such an Officers' Certificate.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
-80-
<PAGE>
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106, not less than 30 days nor more than
60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to
-81-
<PAGE>
be redeemed and, if applicable, that interest thereon shall cease to accrue
on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate,
and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to noon New
---------------------------
York City time on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay on the Redemption Date the
-82-
<PAGE>
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
-------- -------
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
-------- -------
that, except as otherwise provided with respect to Securities convertible into
Common Stock or Preferred Stock, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
- -------
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless
-83-
<PAGE>
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
---------------------------
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. Conversion Arrangement on Call for Redemption. In
---------------------------------------------
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee or the Paying Agent in trust for the Holders
of Securities, on or before 10:00 a.m. New York time on the Redemption Date, an
amount not less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the
Paying Agent shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it in the same manner as it would pay moneys
deposited with it by the Company for the redemption of Securities. Without the
Trustee's and the Paying Agent's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities
-84-
<PAGE>
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee and the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Trustee and the Paying Agent
from, and hold them harmless against, any loss, liability or expense arising out
of or in connection with any such arrangement for the purpose and conversion of
any Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee and the Paying Agent (including the fees and
expenses of their agents and counsel) in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of their
powers, duties, responsibilities or obligations under this Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities; provided that such Securities so delivered or
--------
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption
-85-
<PAGE>
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own
-86-
<PAGE>
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the principal (or, if so provided by the terms of
the Securities of any series, a percentage of the principal) of, and (except if
the Repayment Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof, as the case may be, to be repaid on such
date.
SECTION 1303. Exercise of Option. Securities of any series subject
------------------
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the certificate
number or a description of the tenor and terms of the Security, the CUSIP
number, if available, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Security to be repaid, together with
the duly completed form entitled "Option to Elect Repayment" on the reverse of
the Security, will be received by the Trustee not later than the third Business
Day after the date of such telegram, facsimile transmission or letter; provided,
--------
however, that such telegram, facsimile transmission or letter shall only be
- -------
effective if such Security and form duly completed are received by the Trustee
by such third Business Day. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid
-87-
<PAGE>
is a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
- -------
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
- -------- -------
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
-------- -------
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
-------- -------
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
-88-
<PAGE>
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- ---------------------------------
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented
-89-
<PAGE>
by such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B) of
this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1005, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
-------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 1004 and 1005, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 and 1005, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above,
-90-
<PAGE>
the remainder of this Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount (in such currency, currencies
or currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), or (2)
Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency, currencies
or currency unit in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal of (and premium, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money in
an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with
-91-
<PAGE>
respect to such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as
Sections 501(6) and 501(7) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
-92-
<PAGE>
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the deposit pursuant
to Section 1404(a) has been made, the indebtedness represented by such Security
and any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
-93-
<PAGE>
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting
-----------------------------------------
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee
----------------------------------
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, or in London as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
-94-
<PAGE>
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled
------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
--------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
- -------- -------
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
- -------- -------
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of
-95-
<PAGE>
such specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meetings. (a) Notwithstanding any provisions of this Indenture, the
- -----------
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, 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 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
-96-
<PAGE>
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
--------
however, that no vote shall be cast or counted at any meeting in respect of any
- -------
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The
-----------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
-97-
<PAGE>
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 1601. Applicability of Article. Securities of any series
------------------------
which are convertible into Common Stock at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 301 for the Securities of any
series) in accordance with this Article. Each reference in this Article Sixteen
to "a Security" or "the Securities" refers to the Securities of the particular
series that is convertible into Common Stock. If more than one series of
Securities with conversion privileges are Outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
SECTION 1602. Right of Holders to Convert Securities into Common
--------------------------------------------------
Stock. Subject to and upon compliance with the terms of the Securities and the
- -----
provisions of Section 1108 and this Article Sixteen, at the option of the Holder
thereof, any Security of any series of any authorized denomination which is
convertible into Common Stock, or any portion of the principal amount thereof
which is $1,000 or any integral multiple of $1,000, may, at any time during the
period specified in the Securities of such series, or in case such Security or
portion thereof shall have been called for redemption, then in respect of such
Security or portion thereof until and including, but not after (unless the
Company shall default in payment due upon the redemption thereof) the close of
business on the Business Day prior to the Redemption Date (except that in the
case of repayment at the option of the Holder, if specified in the terms of the
relevant Security, such right shall terminate upon the Company's receipt of
written notice of the exercise of such option), be converted into duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock,
as specified in such Security, at the conversion price or conversion rate for
each $1,000 principal amount of Securities (such initial conversion rate
reflecting an initial conversion price specified in such Security) in effect on
the conversion date, or, in case an adjustment in the conversion price has taken
place pursuant to the provisions of this Article Sixteen, then at the applicable
conversion price as so adjusted, upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 1002, accompanied by a written notice
of election to convert as provided in Section 1603 and, if so required by the
Company and/or the Trustee, by a written instrument or instruments of transfer
in form satisfactory to the Company and/or the Trustee, as applicable, duly
executed by the Holder thereof or his attorney duly authorized in writing. All
Securities surrendered for conversion shall, if surrendered to
-98-
<PAGE>
the Company or any conversion agent, be delivered to the Trustee for
cancellation and cancelled by it, or shall, if surrendered to the Trustee, be
cancelled by it, as provided in Section 310.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 1605 or such other or different terms, if any, as may be
specified by Section 301 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
SECTION 1603. Issuance of Shares of Common Stock on Conversions. As
-------------------------------------------------
promptly as practicable after the surrender, as herein provided, of any Security
or Securities for conversion into Common Stock, the Company shall deliver or
cause to be delivered at its said office or agency to or upon the written order
of the Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made at the time that such Security or Securities shall
have been surrendered for conversion and such notice shall have been received by
the Company or the Trustee, the rights of the Holder of such Security or
Securities as a Holder shall cease at such time, the Person or Persons entitled
to receive the shares of Common Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become either record
holder or holders of such shares of Common Stock at such time and such
conversion shall be at the conversion price in effect at such time. In the case
of any Security of any series which is converted in part only, upon such
conversion, the Company shall execute and, upon the Company's request and at the
Company's expense, the Trustee or an Authenticating Agent shall authenticate and
deliver to the Holder thereof, as requested by such Holder, a new Security or
Securities of such series of authorized denominations in aggregate principal
amount equal to the unconverted portion of such Security.
If the last day on which such Security may be converted is not a
Business Day in a place where the conversion agent for
-99-
<PAGE>
that Security is located, such Security may be surrendered to that conversion
agent on the next succeeding day that is a Business Day.
The Company shall not be required to deliver certificates for shares
of Common Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Common Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 1604. No Payment or Adjustment for Interest or Dividends.
--------------------------------------------------
Unless otherwise specified as contemplated by Section 301 for Securities of such
series, Securities surrendered for conversion into Common Stock during the
period from the close of business on any Regular Record Date (or Special Record
Date) next preceding any Interest Payment Date to the opening of business on
such Interest Payment Date (except Securities called for redemption on a
Redemption Date within such period) when surrendered for conversion must be
accompanied by payment (by certified or official bank check to the order of the
Company payable in clearing house funds at the location where the Securities are
surrendered) of an amount equal to the interest thereon which the Holder is
entitled to receive on such Interest Payment Date. Payment of interest shall be
made, on such Interest Payment Date or such other payment date (as set forth in
Section 307), as the case may be, to the Holder of the Securities as of such
Regular Record Date or Special Record Date, as applicable. Except where
Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Securities will be payable by the
Company on any Interest Payment Date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any Original
Issue Discount Security, the fixed number of shares of Common Stock into which
such Security is convertible delivered by the Company to the Holder thereof
shall be applied, first, to the portion attributable to the accrued original
issue discount relating to the period from the date of issuance to the date of
conversion of such Security, and, second, to the portion attributable to the
balance of the principal amount of such Security.
SECTION 1605. Adjustment of Conversion Price. Unless otherwise
------------------------------
specified as contemplated by Section 301 for Securities of such series, the
conversion price for Securities convertible into Common Stock shall be adjusted
from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares or (z) combine the
outstanding Common Stock into a smaller number of shares, the conversion
price for the Securities of such series shall be adjusted so
-100-
<PAGE>
that the Holder of any such Security thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock which he
would have owned or have been entitled to receive after the happening of
any of the events described above had such Security been converted
immediately prior to the record date in the case of a dividend or the
effective date in the case of subdivision or combination. An adjustment
made pursuant to this subsection (a) shall become effective immediately
after the record date in the case of a dividend, except as provided in
subsection (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share of Common Stock (as defined for purposes of this subsection (b) in
subsection (e) below), at the record date for the determination of
stockholders entitled to receive such rights or warrants, the conversion
price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price
in effect immediately prior to the date of issuance of such rights or
warrants by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at such current market price, and the denominator of which
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subsection (h) below, after such record date. In determining whether any
rights or warrants entitle the Holders of the Securities of such series to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may
be, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Common
Stock any shares of Capital Stock of the Company (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
-101-
<PAGE>
distributions paid from retained earnings of the Company) or rights or
warrants to subscribe for or purchase any of its securities (excluding
those rights or warrants referred to in subsection (b) above) (any of the
foregoing being herein in this subsection (c) called the "Special
Securities"), then, in each such case, unless the Company elects to reserve
such Special Securities for distribution to the Holders of Securities of
such series upon the conversion so that any such Holder converting such
Securities will receive upon such conversion, in addition to the shares of
Common Stock to which such Holder is entitled, the amount and kind of
Special Securities which such Holder would have received if such Holder
had, immediately prior to the record date for the distribution of the
Special Securities, converted Securities into Common Stock, the conversion
price shall be adjusted so that the same shall equal the price determined
by multiplying the conversion price in effect immediately prior to the date
of such distribution by a fraction the numerator of which shall be the
current market price per share (as defined for purposes of this subsection
(c) in subsection (e) below) of Common Stock on the record date mentioned
above less the then fair market value (as determined by the Board of
Directors, whose determination shall, if made in good faith, be conclusive)
of the portion of the Special Securities so distributed applicable to one
share of Common Stock, and the denominator of which shall be the current
market price per share (as defined in subsection (e) below) of Common
Stock; provided, however, that in the event the then fair market value (as
-------- -------
so determined) of the portion of the Special Securities so distributed
applicable to one share of Common Stock is equal to or greater than the
current market price per share (as defined in subsection (e) below) of
Common Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of
Securities of such series shall have the right to receive the amount and
kind of Special Securities such holder would have received had he converted
such Securities immediately prior to the record date for the distribution
of the Special Securities. Such adjustment shall become effective
immediately, except as provided in subsection (h) below, after the record
date for the determination of stockholders entitled to receive such
distribution.
(d) If, pursuant to subsection (b) or (c) above, the number of shares
of Common Stock shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding shares of Common Stock
in the form of any right or warrant to purchase securities of the Company,
or the Company has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised warrant, the
conversion price shall forthwith be adjusted to equal the conversion price
that
-102-
<PAGE>
would have applied had such right or warrant never been declared,
distributed or issued.
(e) For the purpose of any computation under subsection (b) above,
the current market price per share of Common Stock on any date shall be
deemed to be the average of the reported last sales prices for the thirty
consecutive Trading Days (as defined below) commencing forty-five Trading
Days before the date in question. For the purpose of any computation under
subsection (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the reported last sales
prices for the ten consecutive Trading Days before the date in question.
The reported last sales price for each day (whether for purposes of
subsection (b) or subsection (c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices, regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if the Common
Stock is not listed or admitted to trading on the New York Stock Exchange,
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if the Common Stock is not quoted on such National
Market System, the average of the closing bid and asked prices on such day
in the over-the-counter market as reported by NASDAQ or, if bid and asked
prices for the Common Stock on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a
market in the Common Stock selected for such purpose by the Board of
Directors or a committee thereof or, if no such quotations are available,
the fair market value of the Common Stock as determined by a New York Stock
Exchange Member firm regularly making a market in the Common Stock selected
for such purpose by the Board of Directors or a committee thereof or, if no
such quotations are available, the fair market value of the Common Stock as
determined by a New York Stock Exchange member firm regularly making a
market in the Common Stock selected for such purpose by the Board of
Directors or a committee thereof. As used herein, the term "Trading Day"
with respect to the Common Stock means (x) if the Common Stock is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such
other national securities exchange is open for business or (y) if the
Common Stock is quoted on the National Market System of the NASDAQ, a day
on which trades may be made on such National Market System or (z)
otherwise, any day other than a Saturday or Sunday or a day on which
banking institutions in
-103-
<PAGE>
the State of New York are authorized or obligated by law or executive order
to close.
(f) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
-------- -------
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, provided, further,
-------- -------
that adjustment shall be required and made in accordance with the
provisions of this Article Sixteen (other than this subsection (f)) not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Stock. All calculations
under this Article Sixteen shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be, with one-half cent and 1/200
of a share, respectively, being rounded upward. Anything in this Section
1605 to the contrary notwithstanding, the Company shall be entitled to make
such reductions in the conversion price, in addition to those required by
this Section 1605, as it in its discretion shall determine to be advisable
in order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Company to
its stockholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein provided,
the Company shall promptly file with the Trustee, at the corporate trust
office of the Trustee, and with the office or agency maintained by the
Company for the conversion of Securities of such series pursuant to Section
1002, an Officers' Certificate, setting forth the conversion price after
such adjustment and setting forth a brief statement of the facts requiring
such adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any conversion
agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of a Security of
such series desiring to inspect the same. The Company shall promptly cause
a notice setting forth the adjusted conversion price to be mailed to the
Holders of Securities of such series, as their names and addresses appear
upon the Security Register of the Company.
(h) In any case in which this Section 1605 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y) issuing
to the Holder of any Security of such series converted after such record
date and before the occurrence of such event the additional shares of
-104-
<PAGE>
the Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional share of Common Stock
pursuant to Section 1606 hereof.
SECTION 1606. No Fractional Shares to be Issued. No fractional
---------------------------------
shares of Common Stock shall be issued upon any conversion of Securities. If
more than one Security of any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities of such series (or specified portions thereof to the
extent permitted hereby) so surrendered. Instead of a fraction of a share of
Common Stock which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the Company shall pay a cash
adjustment (computed to the nearest cent, with one-half cent being rounded
upward) in respect of such fraction of a share in an amount equal to the same
fractional interest of the reported last sales price (as defined in Section
1605(e)) of the Common Stock on the Trading Day (as defined in Section 1605(e))
next preceding the day of conversion.
SECTION 1607. Preservation of Conversion Rights upon Consolidation,
-----------------------------------------------------
Merger, Sale or Conveyance. In case of any consolidation of the Company with,
- --------------------------
or merger of the Company into, any other corporation (other than a consolidation
or merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a series which was convertible into Common
Stock shall have the right thereafter to convert such Security into the kind and
amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Securities might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act as then in effect and shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen. Neither the Trustee nor any conversion agent shall
have any liability or responsibility for determining the correctness of any
provision contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property receivable by
Holders of
-105-
<PAGE>
the Securities upon the conversion of their Securities after any such
consolidation, merger, sale or transfer, or to any adjustment to be made with
respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Officers' Certificate
with respect thereto and an Opinion of Counsel with respect to legal matters
related thereto. If in the case of any such consolidation, merger, sale or
transfer, the stock or other securities and property receivable by a Holder of
the Securities includes stock or other securities and property of a corporation
other than the successor or purchasing corporation, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary. The
above provisions of this Section 1607 shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 1608. Notice to Holders of the Securities of a Series Prior
-----------------------------------------------------
to Taking Certain Types of Action. With respect to the Securities of any
- ---------------------------------
series, in case:
(a) the Company shall authorize the issuance to all holders of Common
Stock of rights or warrants to subscribe for or purchase shares of its
Capital Stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Stock of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Stock or of any
consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 1002, and shall cause to be mailed to the Holders of
Securities of such series, at their last addresses as they shall appear on the
Security Register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Stock to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become
-106-
<PAGE>
effective, and the date as of which it is expected that holders of record of
Common Stock shall be entitled to exchange their Common Stock for securities or
other property, if any, deliverable upon such subdivision, combination,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up or
other action. The failure to give the notice required by this Section 1608 or
any defect therein shall not affect the legality or validity of any
distribution, right, warrant, subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action, or the
vote upon any of the foregoing. Such notice shall also be published by and at
the expense of the Company not later than the aforesaid filing date at least
once in an Authorized Newspaper.
SECTION 1609. Covenants to Reserve Shares for Issuance on Conversion
------------------------------------------------------
of Securities. The Company covenants that at all times it will reserve and keep
- -------------
available out of each class of its authorized Common Stock, free from preemptive
rights, solely for the purpose of issue upon conversation of Securities of any
series as herein provided, such number of shares of Common Stock as shall then
be issuable upon the conversion of all Outstanding Securities of such series.
The Company covenants that all shares of Common Stock which shall be so issuable
shall, when issued or delivered, be duly and validly issued shares of Common
Stock into which Securities of such series are convertible, and shall be fully
paid and nonassessable, free of all liens and charges and not subject to
preemptive rights and that, upon conversion, the appropriate capital stock
accounts of the Company will be duly credited.
SECTION 1610. Compliance with Governmental Requirements. The Company
-----------------------------------------
covenants that if any shares of Common Stock required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or any national or regional securities exchange on
which Common Stock is listed at the time of delivery of any shares of Common
Stock, before such shares may be issued upon conversion, the Company will use
its best efforts to cause such shares to be duly registered, listed or approved,
as the case may be.
SECTION 1611. Payment of Taxes upon Certificates for Shares Issued
----------------------------------------------------
upon Conversion. The issuance of certificates for shares of Common Stock upon
- ---------------
the conversion of Securities shall be made without charge to the converting
Holders for any tax (including, without limitation, all documentary and stamp
taxes) in respect of the issuance and delivery of such certificates, and such
certificates shall be issued in the respective names of, or in such names as may
be directed by, the holders of the Securities converted; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such
-107-
<PAGE>
certificate in a name other than that of the Holder of the Security converted,
and the Company shall not be required to issue or deliver such certificate
unless or until the Person or Persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 1612. Trustee's Duties with Respect to Conversion Provisions.
------------------------------------------------------
The Trustee and any conversion agent shall have no duty, responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Common Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Security, and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee and any conversion agent, subject
to the provisions of Section 313 of the Trust Indenture Act, shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article Sixteen.
SECTION 1613. Conversion of Securities Into Preferred Stock.
---------------------------------------------
Notwithstanding anything to the contrary in this Article Sixteen, the Company
may issue Securities that are convertible into shares of Preferred Stock,
including Preferred Stock convertible into Common Stock, in which case all terms
and conditions relating to the conversion of Securities into Preferred Stock,
including any terms similar to those provided in Sections 1601 through 1612
shall be as provided in or pursuant to an appropriate Board Resolution or in any
indenture supplemental hereto or as otherwise contemplated by Section 301.
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
-108-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
LEVEL 3 COMMUNICATIONS, INC.
[SEAL]
By__________________________
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
[SEAL]
By__________________________
Title:
-109-
<PAGE>
STATE OF NEBRASKA )
) ss:
COUNTY OF [ ] )
On the ____ day of _________, ____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ________________, ______________________, that he is
________________________ of Level 3 Communications, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
-110-
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _________, ____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that [s]he resides at ________________, ______________________, that [s]he
is a ________________ of IBJ Whitehall Bank & Trust Company, one of the
corporations described in and which executed the foregoing instrument; that
[s]he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that [s]he signed his or her name
thereto by like authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
-111-
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Level 3 Communications, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin
<PAGE>
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
__________________ of such interest in the above-captioned Securities in respect
of which we are not able to certify and as to which we understand an exchange
for an interest in a Permanent Global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, ____
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
_____________________________________
(Authorized Signator)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] ___________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Level 3 Communications,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-3
<PAGE>
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, ____
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By_______________________________
A-4
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
LEVEL 3 COMMUNICATIONS, INC.
TO
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
____________________________
Indenture
Dated as of __________, ____
____________________________
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES................................................................... 1
RECITALS.................................................................. 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................. 1
Act................................................................. 2
Additional Amounts.................................................. 2
Affiliate........................................................... 2
Agent Authenticating................................................ 2
Authorized Newspaper................................................ 2
Bearer Security..................................................... 2
Board of Directors.................................................. 3
Board Resolution.................................................... 3
Business Day........................................................ 3
CEDEL............................................................... 3
Commission.......................................................... 3
Common Stock........................................................ 3
Company............................................................. 3
Company Request and Company Order................................... 3
Conversion Date..................................................... 4
Conversion Event.................................................... 4
Corporate Trust Office.............................................. 4
corporation......................................................... 4
coupon.............................................................. 4
Currency Indexed Note............................................... 4
Defaulted Interest.................................................. 4
Dollar or $......................................................... 4
ECU................................................................. 4
Election Date....................................................... 4
Euroclear........................................................... 4
European Communities................................................ 4
European Monetary System............................................ 5
Event of Default.................................................... 5
Exchange Rate Agent................................................. 5
Exchange Rate Officer's Certificate................................. 5
Excess Proceeds..................................................... 5
Foreign Currency.................................................... 5
Government Obligations.............................................. 5
Holder.............................................................. 6
Indenture........................................................... 6
Indexed Security.................................................... 6
interest............................................................ 6
Interest Payment Date............................................... 6
Market Exchange Rate................................................ 6
Material Subsidiary................................................. 7
Maturity............................................................ 7
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Officers' Certificate................................................. 7
Opinion of Counsel.................................................... 7
Original Issue Discount Security...................................... 8
Outstanding........................................................... 8
Paying Agent.......................................................... 9
Person................................................................ 9
Place of Payment...................................................... 9
Predecessor Security.................................................. 9
Preferred Stock....................................................... 10
Redemption Date....................................................... 10
Redemption Price...................................................... 10
Registered Security................................................... 10
Regular Record Date................................................... 10
Repayment Date........................................................ 10
Repayment Price....................................................... 10
Responsible Officer................................................... 10
Security.............................................................. 10
Security Register and Security Registrar.............................. 11
Senior Indebtedness................................................... 11
Special Record Date................................................... 11
Stated Maturity....................................................... 11
Subsidiary............................................................ 11
Trust Indenture Act or TIA............................................ 11
Trustee............................................................... 12
United States......................................................... 12
United States person.................................................. 12
Valuation Date........................................................ 12
Yield to Maturity..................................................... 12
SECTION 102. Compliance Certificates and Opinions.......................... 12
SECTION 103. Form of Documents Delivered to Trustee........................ 13
SECTION 104. Acts of Holders............................................... 13
SECTION 105. Notices, etc., to Trustee and Company......................... 15
SECTION 106. Notice to Holders; Waiver..................................... 16
SECTION 107. Effect of Headings and Table of Contents...................... 17
SECTION 108. Successors and Assigns........................................ 17
SECTION 109. Separability Clause........................................... 17
SECTION 110. Benefits of Indenture......................................... 17
SECTION 111. Governing Law................................................. 17
SECTION 112. Legal Holidays................................................ 17
ARTICLE TWO SECURITIES FORMS
SECTION 201. Forms of Securities........................................... 18
SECTION 202. Form of Trustee's Certificate of Authentication............... 18
SECTION 203. Securities Issuable in Global Form............................ 19
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................... 20
SECTION 302. Denominations................................................. 24
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 303. Execution, Authentication, Delivery and Dating................ 24
SECTION 304. Temporary Securities.......................................... 27
SECTION 305. Registration, Registration of Transfer and
Exchange.................................................... 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.................................................. 34
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset..................................... 35
SECTION 308. Extension of Maturity......................................... 39
SECTION 309. Persons Deemed Owners........................................ 41
SECTION 310. Cancellation.................................................. 42
SECTION 311. Computation of Interest....................................... 42
SECTION 312. Currency and Manner of Payments in Respect of
Securities.................................................. 42
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent....................................................... 47
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture................................................... 48
SECTION 402. Application of Trust Funds.................................... 49
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default............................................. 50
SECTION 502. Acceleration of Maturity; Rescission and
Annulment................................................... 52
SECTION 504. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................... 53
SECTION 504. Trustee May File Proofs of Claim.............................. 54
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.................................... 55
SECTION 506. Application of Money Collected................................ 55
SECTION 507. Limitation on Suits........................................... 56
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest and Additional Amounts........ 56
SECTION 509. Restoration of Rights and Remedies............................ 57
SECTION 510. Rights and Remedies Cumulative................................ 57
SECTION 511. Delay or Omission Not Waiver.................................. 57
SECTION 512. Control by Holders of Securities.............................. 57
SECTION 513. Waiver of Past Defaults....................................... 58
SECTION 514. Waiver of Usury, Stay or Extension Laws....................... 58
SECTION 515. Undertaking for Costs......................................... 58
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults............................................ 59
SECTION 602. Certain Rights of Trustee..................................... 59
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 603. Not Responsible for Recitals or Issuance of
Securities.................................................. 61
SECTION 604. May Hold Securities........................................... 61
SECTION 605. Money Held in Trust........................................... 61
SECTION 606. Compensation and Reimbursement................................ 61
SECTION 607. Corporate Trustee Required; Eligibility....................... 62
SECTION 608. Resignation and Removal; Appointment of Successor............. 62
SECTION 609. Acceptance of Appointment by Successor........................ 64
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business................................................. 65
SECTION 611. Appointment of Authenticating Agent........................... 66
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................. 68
SECTION 702. Reports by Trustee............................................ 68
SECTION 703. Reports by Company............................................ 68
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders........................................ 69
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions.................................................. 69
SECTION 802. Rights and Duties of Successor Corporation.................... 70
SECTION 803. Officers' Certificate and Opinion of Counsel.................. 70
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders..................................................... 70
SECTION 902. Supplemental Indentures with Consent of Holders............... 72
SECTION 903. Execution of Supplemental Indentures.......................... 74
SECTION 904. Effect of Supplemental Indentures............................. 74
SECTION 905. Conformity with Trust Indenture Act........................... 74
SECTION 906. Reference in Securities to Supplemental Indentures............ 74
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
and Interest and Additional Amounts......................... 74
SECTION 1002. Maintenance of Office or Agency............................... 75
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
SECTION 1003. Money for Securities Payments to Be
Held in Trust................................................ 77
SECTION 1004. Statement as to Compliance................................... 78
SECTION 1005. Additional Amounts........................................... 79
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..................................... 80
SECTION 1102. Election to Redeem; Notice to Trustee........................ 80
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed..................................................... 80
SECTION 1104. Notice of Redemption......................................... 81
SECTION 1105. Deposit of Redemption Price.................................. 82
SECTION 1106. Securities Payable on Redemption Date........................ 82
SECTION 1107. Securities Redeemed in Part.................................. 84
SECTION 1108. Conversion Arrangement on Call for Redemption................ 84
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article..................................... 85
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........ 85
SECTION 1203. Redemption of Securities for Sinking Fund.................... 85
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article..................................... 86
SECTION 1302. Repayment of Securities...................................... 86
SECTION 1303. Exercise of Option........................................... 87
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable............................. 87
SECTION 1305. Securities Repaid in Part.................................... 89
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.................. 89
SECTION 1402. Defeasance and Discharge..................................... 89
SECTION 1403. Covenant Defeasance.......................................... 90
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance................................................... 90
SECTION 1405. Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions................................................... 92
</TABLE>
v
<PAGE>
<TABLE>
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
<S> <C>
SECTION 1501. Purposes for Which Meetings May Be Called................... 94
SECTION 1502. Call, Notice and Place of Meetings.......................... 94
SECTION 1503. Persons Entitled to Vote at Meetings........................ 94
SECTION 1504. Quorum; Action.............................................. 95
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings......................... 96
SECTION 1506. Counting Votes and Recording Action of Meetings............. 97
ARTICLE SIXTEEN CONVERSION OF SECURITIES
SECTION 1601. Applicability of Article.................................... 97
SECTION 1602. Right of Holders to Convert Securities into Common
Stock....................................................... 98
SECTION 1603. Issuance of Shares of Common Stock on
Conversions................................................. 99
SECTION 1604. No Payment or Adjustment for Interest or Dividends.......... 99
SECTION 1605. Adjustment of Conversion Price.............................. 100
SECTION 1606. No Fractional Shares to be Issued........................... 104
SECTION 1607. Preservation of Conversion Rights
upon Consolidation, Merger, Sale or Conveyance.............. 105
SECTION 1608. Notice to Holders of the Securities of a Series
Prior to Taking Certain Types of Action..................... 106
SECTION 1609. Covenants to Reserve Shares for Issuance
on Conversion of Securities................................. 107
SECTION 1610. Compliance with Governmental Requirements................... 107
SECTION 1611. Payment of Taxes upon Certificates for
Shares Issued upon Conversion............................... 107
SECTION 1612. Trustee's Duties with Respect to
Conversion Provisions....................................... 107
SECTION 1613. Conversion of Securities Into Preferred Stock............... 108
ARTICLE SEVENTEEN SUBORDINATION OF SECURITIES
SECTION 1701. Securities Subordinated to Senior Indebtedness.............. 108
SECTION 1702. Subrogation................................................. 110
SECTION 1703. Obligation of the Company Unconditional..................... 110
SECTION 1704. Payments on Securities Permitted............................ 111
SECTION 1705. Effectuation of Subordination by Trustee.................... 111
SECTION 1706. Knowledge of Trustee........................................ 111
SECTION 1707. Trustee May Hold Senior Indebtedness........................ 112
</TABLE>
vi
<PAGE>
SECTION 1708. Rights of Holders of Senior Indebtedness
Not Impaired............................................... 112
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vii
<PAGE>
LEVEL 3 COMMUNICATIONS, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of ______________, ____
Trust Indenture Act Section Indenture Section
Section 310(a)(1)............................... 607
(b).................................. 607, 608
Section 312(c) ................................. 701
Section 313(a) ................................. 702
(c).................................. 702
Section 314(a) ................................. 703
(a)(4)............................... 1006
(c)(1)............................... 102
(c)(2)............................... 102
(e).................................. 102
Section 315(b) ................................. 601
Section 316(a) (last sentence).................. 101 ("Outstanding")
(a)(1)(A)............................ 502, 512
(a)(1)(B)............................ 513
(b).................................. 508
Section 317(a)(1)............................... 503
(a)(2)............................... 504
Section 318(a) ................................. 111
(c).................................. 111
____________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Reference is also made to Section 318(c) of the Trust Indenture Act of
1939, which provides that the provisions of Section 310 to and including Section
317 of the Trust Indenture Act of 1939 are a part of and govern every qualified
indenture, whether or not physically contained therein.
viii
<PAGE>
INDENTURE, dated as of __________, ____, between LEVEL 3
COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company"),
having its principal office at 3555 Farnam Street, Omaha, Nebraska 68131 and IBJ
WHITEHALL BANK & TRUST COMPANY f/k/a IBJ Schroder Bank & Trust Company, a
corporation duly organized and existing under the laws of the State of New York,
as Trustee hereunder (hereinafter called the "Trustee"), having its Corporate
Trust Office at One State Street, New York, New York 10004.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness, and has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of the Securities, unlimited as to principal amount, to bear
interest at the rate or pursuant to the formula, to mature at such times and to
have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
-----------
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash
<PAGE>
transaction" and "self-liquidating paper", as used in TIA Section 311,
shall have the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
---
in Section 104.
"Additional Amounts" means any additional amounts which are required
------------------
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
--------------------
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bearer Security" means any Security established pursuant to Section
---------------
201 which is payable to bearer.
2
<PAGE>
"Board of Directors" means the board of directors of the Company, the
------------------
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
----------------
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
------------
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
-----
its successor.
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, with respect to the Company, its common stock,
------------
$.01 par value, and with respect to any Material Subsidiary, stock of any class,
however designated, except stock which is non-participating beyond fixed
dividend and liquidation preferences and the holders of which have either no
voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Material Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first
-------
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order signed in the name of the Company by its Chairman of the Board,
the President or a Vice President, and by its Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
3
<PAGE>
"Conversion Date" has the meaning specified in Section 312(d).
---------------
"Conversion Event" means the cessation of use of (i) a Foreign
----------------
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at which, at
----------------------
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at One State Street,
New York, New York 10004.
"corporation" includes corporations, associations, companies and
-----------
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Currency Indexed Note" means any Security with the amount of
---------------------
principal payments determined by reference to an index currency.
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Dollar" or "$" means a dollar or other equivalent unit in such coin
------ -
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
---
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
-------------
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
--------------------
European Coal and Steel Community and the European Atomic Energy Community.
4
<PAGE>
"European Monetary System" means the European Monetary System
------------------------
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
----------------
"Exchange Rate Agent", with respect to Securities of or within any
-------------------
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
-----------------------------------
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation, signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Excess Proceeds" has the meaning specified in Section 1609.
---------------
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
----------------------
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
--------
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
5
<PAGE>
payment of interest on or principal of the Government Obligation evidenced by
such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
------
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
-------- -------
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
---------
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
----------------
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1005,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
---------------------
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to
6
<PAGE>
Section 301 for the Securities of the relevant series, (ii) for any conversion
of Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or currency
unit in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Material Subsidiary" means any Subsidiary with stockholders' equity
-------------------
which constituted at least 15% of the Company's consolidated stockholders'
equity, all as determined as of the date of the Company's most recently prepared
quarterly financial statements in accordance with generally accepted accounting
principles.
"Maturity", when used with respect to any Security, means the date on
--------
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company or who may be an
7
<PAGE>
employee of or other counsel for the Company and who shall be satisfactory to
the Trustee.
"Original Issue Discount Security" means any Security which provides
--------------------------------
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Stock or Preferred Stock
in accordance with or as contemplated by this Indenture, if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be
8
<PAGE>
deemed to be Outstanding for such purpose shall be equal to the amount of
principal thereof that would be (or shall have been declared to be) due and
payable, at the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in making
such determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date such
Security is originally issued by the Company as set forth in an Exchange Rate
Officer's Certificate delivered to the Trustee, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
----------------
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
9
<PAGE>
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to the Company, its preferred
---------------
stock, $.01 par value.
"Redemption Date", when used with respect to any Security to be
---------------
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
-------------------
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
--------------
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
---------------
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
-------------------
any officer within the Corporate Trust Agencies and Administration of the
Trustee, including any vice president, any assistant vice president (whether or
not designated by a number or a word or words added before or after the title
"vice president"), the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
-------- -------
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall
10
<PAGE>
have the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 305.
"Senior Indebtedness" means (i) the principal of and premium, if any,
-------------------
and unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings; and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts, and similar
arrangements, unless, in each case, the instrument by which the Company
incurred, assumed or guaranteed the indebtedness or obligations described in
clauses (i) through (vii) hereof expressly provides that such indebtedness or
obligation is subordinate or junior in right of payment to any other
indebtedness or obligations of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
-------------------
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means a corporation a majority of the outstanding voting
----------
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having 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.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
11
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -------- -------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
--------------
"Yield to Maturity" means the yield to maturity, computed at the time
-----------------
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
12
<PAGE>
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 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 as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations 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 as 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
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing.
13
<PAGE>
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution of any instrument or writing,
or the authority of the Person executing the same, may also be proved in any
reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
14
<PAGE>
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
- --------
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) 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, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. 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 shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust and Agencies Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first
15
<PAGE>
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency
16
<PAGE>
of any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
----------------------
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Securities or coupons, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and
-------------
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional
17
<PAGE>
Amounts or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest shall accrue on
--------
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
-------------------
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
18
<PAGE>
By ______________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case
19
<PAGE>
of a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York,
20
<PAGE>
where the principal of (and premium, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may be
surrendered for exchange or conversion and notices or demands to or upon
the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of Securities of the
series that is convertible in accordance with the provisions of this
Indenture or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any) or interest or Additional Amounts,
if any, on the Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
21
<PAGE>
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election Date),
and the terms and conditions upon which, such election may be made, and the
time and manner of determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in
which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are
22
<PAGE>
to be issuable as a global Security, the identity of the depositary for
such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent, if any;
(24) the obligation, if any, of the Company to permit the conversion
of the Securities of such series into the Company's Common Stock or
Preferred Stock, as the case may
23
<PAGE>
be, and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price, any requirements relative to reservation of shares for purposes of
conversion and any other provision in addition to or in lieu of those set
forth in this Indenture or any indenture supplemental hereto relative to
such obligation); and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized
24
<PAGE>
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
-------- -------
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
-------- -------
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in
25
<PAGE>
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that,
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons; and
(ii) an Officer's Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities
have been complied with and that, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any
of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to
26
<PAGE>
Section 301 or a Company Order, or an Opinion of Counsel or an Officers'
Certificate otherwise required pursuant to the preceding paragraph at the time
of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
27
<PAGE>
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee or authenticating agent shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; provided, however, that no definitive
-------- -------
Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided further that a definitive Bearer Security shall be
-------- -------
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
--------
however, that, unless otherwise specified in such temporary global
- -------
28
<PAGE>
Security, upon such presentation by the Common Depositary, such temporary global
Security is accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary global Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that definitive Bearer
-------- -------
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
29
<PAGE>
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided. In the
event that the Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not
30
<PAGE>
contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency of the Company. Whenever any such
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
--------
however, that, except as otherwise provided in Section 1002, interest
- -------
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon
31
<PAGE>
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee or
authenticating agent upon receipt of any required documentation shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is The Depository Trust Company ("DTC"), then, unless the terms of such
global Security expressly permit such global Security to be exchanged in whole
or in part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor DTC for such global Security selected or approved by the
Company or to a nominee of such successor to DTC. If at any time DTC notifies
the Company that it is unwilling or unable to continue as depositary for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 if so
required by applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a
successor depositary for such global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an Event of Default
has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depositary for such
global Security or Securities or (z) the Company, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such global Security
or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later
32
<PAGE>
than the earliest date on which such interest may be so exchanged, the Company
shall execute, and the Trustee shall authenticate and deliver, definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered by DTC or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose; provided, however, that no such exchanges may
-------- -------
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
-------- -------
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
33
<PAGE>
The Company or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
--------
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such
34
<PAGE>
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
-------- -------
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset. (a) Except as otherwise specified with respect to a series of
- --------------
Securities in accordance with the provisions of Section 301 or as provided in
Article XVI with respect to Securities convertible into Common Stock or
Preferred Stock, interest on any Registered Security that is payable, and is
punctually paid or duly provided for, on or prior to noon on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002;
35
<PAGE>
provided, however, that each installment of interest on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located inside
the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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 Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following
36
<PAGE>
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment (which shall not be less than
20 days after such notice is received by the Trustee), and at the same time
the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it appears
in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of
37
<PAGE>
such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise and the related
information referred to below at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note. Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided for in
Section 106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so, upon receipt of such information (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, by notifying the Trustee not later than
20 days prior to the Optional Reset Date, the Company may, at its option, revoke
the interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such interest
rate, if applicable) that is higher than the interest rate (or the spread or
spread multiplier, if applicable) provided for in the Reset Notice, for the
Subsequent Interest Period. Promptly after receipt of such election, the
Trustee shall transmit, in the manner provided for in Section 106, notice of
such higher interest rate (or such higher spread or spread multiplier, if
applicable) to the Holder of such Security. Such
38
<PAGE>
notice to the Trustee shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and with
respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Extension of Maturity. The provisions of this Section
---------------------
308 may be made applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 301) (any series of Securities to which the provisions
of this Section 308 are made applicable are hereinafter referred to as the
"Renewable Securities"). The Renewable Securities shall mature on the initial
Stated Maturity thereof unless the maturity of all or any portion of the
principal amount thereof is extended pursuant to the procedures described below.
On the Interest Payment Dates in each year, the maturity of the Renewable
Securities will be extended to the Interest Payment Date occurring twelve months
after such Interest Payment Date, unless the Holder thereof elects to terminate
the automatic extension of the maturity of the Renewable Securities or of any
portion thereof having a principal amount of $100,000 or any multiple of $1,000
in excess thereof by delivering a notice to such effect to the Security
Registrar for the Renewable Securities not less than 25 nor more than 35 days
prior to such Interest Payment Date. Such notice shall be provided in the
manner described in the last paragraph of this Section 308. Such option may be
exercised by a Holder with respect to less than the entire principal amount of
such Holder's Renewable Securities, provided that the principal amount for which
such option is not exercised is at least
39
<PAGE>
$100,000 or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, the maturity of the Renewable Securities may not
be extended beyond the date set forth on the face of such Security as the final
maturity date (the "Final Maturity Date"). If the Holder elects to terminate the
automatic extension of the maturity of any portion of the principal amount of
the Renewable Securities, such portion will become due and payable on the
Interest Payment Date falling six months after the Interest Payment Date prior
to which the Holder made such election.
An election to terminate the automatic extension of maturity may be
revoked as to any portion of the Renewable Securities having a principal amount
of $100,000 or any multiple of $1,000 in excess thereof by delivering a notice
to such effect to the Security Registrar on any day following the effective date
of the election to terminate the automatic extension of maturity and prior to
the date 10 days before the date on which such portion would otherwise mature.
Such notice shall be provided in the manner described in the last paragraph of
this Section 308. Such a revocation may be made for less than the entire
principal amount of the Renewable Securities for which the automatic extension
of maturity has been terminated; provided that the principal amount of the
Renewable Securities for which the automatic extension of maturity has been
terminated and for which such a revocation has not been made is at least
$100,000 or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, a revocation may not be made during the period
from and including a Regular Record Date to but excluding the immediately
succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of
the Renewable Securities, if not revoked as described above by the Holder making
the election or any subsequent Holder, will be binding upon such subsequent
Holder.
The Renewable Securities may be redeemed in whole or in part at the
option of the Company on the Interest Payment Dates in each year at a redemption
price of 100% of the principal amount of the Renewable Securities to be
redeemed, together with interest accrued and unpaid thereon to the date of
redemption. Notice of redemption will be provided by mailing a notice of such
redemption to each Holder by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to the
respective address of each Holder as that address appears upon the books
maintained by the Registrar.
Notwithstanding the foregoing, by notifying the Trustee not later than
20 days before the original Stated Maturity of such Security, the Company may,
at its option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period. Promptly after
receipt of such notice, the Trustee shall transmit, in the manner provided for
in Section 106, notice of such higher interest rate
40
<PAGE>
to the Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
In order to deliver notice to the Security Registrar for purposes of
terminating (with respect to all or a portion of a Renewable Security) an
automatic extension of maturity, the Holder must follow the procedures set forth
in Article Thirteen for repayment at the option of Holders, except that the
period for delivery of notification to the Trustee shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if the
Holder has so elected to tender any Renewable Security for repayment, the Holder
may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of
41
<PAGE>
customary practices governing the exercise of the rights of such depositary (or
its nominee) as Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered
------------
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company.
SECTION 311. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
---------------------------------------------
Securities. (a) Unless otherwise specified with respect to any Securities
- ----------
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on, and Additional Amounts, if any, in respect of any Registered or Bearer
Security of such series will be made in the currency or currencies, currency
unit or units or composite currency or currencies in which such Registered
Security or Bearer Security, as the case may be, is payable. The provisions of
this Section 312 may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall
42
<PAGE>
have the option, subject to paragraphs (d) and (e) below, to receive payments of
principal of (and premium, if any) or interest, if any, on and Additional
Amounts, if any, in respect of such Registered Securities in any of the
currencies, currency units or composite currencies which may be designated for
such election by delivering to the Trustee for such series of Registered
Securities a written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close of business
on the Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such currency, currency unit or
composite currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such Holder or such transferee by
written notice to the Trustee for such series of Registered Securities (but any
such change must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective for the payment
to be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant currency or currencies,
currency unit or units or composite currency or currencies as provided in
Section 312(a). The Trustee for each such series of Registered Securities shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the currency or currencies, currency
unit or units or composite currency or currencies in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on, and Additional Amounts, if any,
in respect of the Registered Securities to be paid on such payment date,
specifying the amounts in such currency or currencies, currency unit or units or
composite currency or currencies so payable in respect of the Registered
Securities as to which the Holders of Registered Securities denominated in any
currency or currencies, currency unit or units or composite currency or
currencies shall have elected to be paid
43
<PAGE>
in another currency, currency unit or composite currency as provided in
paragraph (b) above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301 and if at least one Holder has made such
election, then, unless otherwise specified pursuant to Section 301, on the
second Business Day preceding such payment date the Company will deliver to the
Trustee for such series of Registered Securities an Exchange Rate Officer's
Certificate in respect of the Dollar, Foreign Currency or currencies, ECU or
currency unit payments to be made on such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar, Foreign Currency or currencies,
ECU or currency unit amount receivable by Holders of Registered Securities who
have elected payment in a currency or currency unit as provided in paragraph (b)
above shall be determined by the Exchange Rate Agent based on the highest bid
quotation in The City of New York received at approximately 11:00 A.M., New York
City time, on the second Business Day (the "Valuation Date") preceding the
applicable payment date from three recognized foreign exchange dealers for the
purchase by the quoting dealer of the currency, currency unit or composite
currency in which such payment would otherwise be made for the currency,
currency unit or composite currency in which Holders have elected payment for
settlement on such payment date in the aggregate amount of the currency,
currency unit or composite currency in which such payment would otherwise be
made to such Holders and at which the applicable dealer commits to execute a
contract, and such determination shall be conclusive and binding for all
purposes, absent manifest error. If such bid quotations are not available,
payments will be made in the currencies, currency units or composite currencies
in which the Registered Securities are payable as if no election under paragraph
(b) above was made. All currency exchange costs will be borne by the Holders
making the election provided for in paragraph (b) above by deductions from
payments to such Holders.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, in respect of, the applicable Securities denominated or payable
in such Foreign Currency, the ECU or such other currency unit occurring after
the last date on which such Foreign Currency, the ECU or such other currency
unit was used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar amount to be paid by the Company to the Trustee of
each such series of Securities and by such Trustee or any Paying Agent to the
Holders of such Securities with respect to such payment date shall be, in the
case of a Foreign Currency other than a currency unit, the Dollar Equivalent of
the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent
of the Currency Unit, in each case as
44
<PAGE>
determined by the Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any currency or currencies, currency
unit or units or composite currency or currencies shall have elected to be paid
in another currency or currencies, currency unit or units or composite currency
or currencies as provided in paragraph (b) above, and a Conversion Event occurs
with respect to such elected currency or currencies, currency unit or units or
composite currency or currencies, such Holder shall receive payment in the
currency or currencies, currency unit or units or composite currency or
currencies in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the currency or
currencies, currency unit or units or composite currency or currencies in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit or
composite currency, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit or composite currency, including,
but not limited to, the ECU, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by
way of combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after
the Conversion Date two or more Component Currencies are consolidated into
a single currency, the respective Specified Amounts of such Component
45
<PAGE>
Currencies shall be replaced by an amount in such single currency equal to
the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount shall
thereafter be a Specified Amount and such single currency shall thereafter
be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount
of such Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to clause 13 of Section 301 by which the
written election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the appropriate series of Securities and all Holders of
such Securities denominated or payable in the relevant currency or currencies,
currency unit or units or composite currency or currencies. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to
46
<PAGE>
the affected Holders) specifying the Conversion Date. In the event the Company
so determines that a Conversion Event has occurred with respect to the ECU or
any other currency unit in which Securities are denominated or payable, the
Company will immediately give written notice thereof to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent (and such
Trustee will promptly thereafter give notice in the manner provided in Section
106 to the affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event the
Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
------------------------------------------------------
Agent. (a) Unless otherwise specified pursuant to Section 301, if and so long
- -----
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies, currency unit or units or composite currency
or currencies into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, and Additional
Amounts, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly
47
<PAGE>
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies, currency unit or units or composite currency
or currencies.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1005), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series 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 Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
48
<PAGE>
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee (A)
all amounts due and owing to the Trustee to the date of such deposit
and (B) as trust funds in trust for the purpose an amount in the
currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest,
and any Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by 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 Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may
49
<PAGE>
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any interest and Additional Amounts for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used
-----------------
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company (including a default with respect to Securities
of any series other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
50
<PAGE>
or evidenced any indebtedness of the Company (including this Indenture),
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $25,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and shall
have resulted in such indebtedness in an aggregate principal amount
exceeding $25,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
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 10% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that if such default under such bond, debenture, note,
-------- -------
mortgage, indenture or other instrument or evidence of indebtedness shall
be remedied or cured by the Company or waived pursuant to such agreement or
instrument, then, unless the Stated Maturity of the Securities shall have
been accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee
or the Holders. Subject to the provisions of Section 601, the Trustee shall
not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (B) the Trustee shall have received written notice thereof from
the Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such mortgage, indenture or other instrument; or
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
51
<PAGE>
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
52
<PAGE>
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series 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.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
53
<PAGE>
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
54
<PAGE>
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons. All rights of action and claims under this Indenture or
- ---------------------
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Indebtedness, to the extent required by Article XVII;
THIRD: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and
any Additional Amounts payable, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
55
<PAGE>
or priority of any kind, according to the aggregate amounts due and payable
on such Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium, if any, and Interest and Additional Amounts. Notwithstanding any other
- ----------------------------------------------------
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in
56
<PAGE>
such Security or coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
--------------------------------
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
57
<PAGE>
(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 of
such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having
58
<PAGE>
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
------------------
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
-------- -------
case of a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and provided further
-------- -------
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the
59
<PAGE>
Trustee for authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of
60
<PAGE>
any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against,
61
<PAGE>
any loss, liability or expense incurred without negligence or bad faith on
its own part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest
on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility. There shall at
---------------------------------------
all times be a Trustee hereunder which shall be eligible to act as Trustee under
TIA Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If 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,
62
<PAGE>
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 with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
63
<PAGE>
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of
--------------------------------------
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on 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, subject nevertheless to its lien and claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities,
64
<PAGE>
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
- --------
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any
65
<PAGE>
Securities or coupons shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Securities
or coupons, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
-----------------------------------
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid 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. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, 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,
66
<PAGE>
without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY, as
Trustee
By _________________________
as Authenticating Agent
By _________________________
Authorized Signatory
67
<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
--------------------------------------------
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each
------------------
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities if and as required in TIA Section 313(c) a brief report dated as of
such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
------------------
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in
68
<PAGE>
the manner and to the extent provided in TIA Section 313(c), such summaries
of any information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- -------
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
-------- -------
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
-------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company may
- -------------------------------------------------------
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, (1) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1005) on all the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article Nine hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition.
69
<PAGE>
SECTION 802. Rights and Duties of Successor Corporation. In case of
------------------------------------------
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. The
--------------------------------------------
Trustee shall receive and shall be entitled to rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
70
<PAGE>
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
-------- -------
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
71
<PAGE>
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures providing for the adjustment of conversion rights
pursuant to Section 1607 with respect to Securities convertible into Common
Stock and as otherwise contemplated by Section 1613 with respect to
Securities convertible into Preferred Stock; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or 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 provisions shall not
--------
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
--------
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons 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 premium, if
any, on) or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
72
<PAGE>
premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1005 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies 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, in the case of redemption or repayment at the option of the Holder, on
or after the Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513, 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 right of Holders to convert their Securities, if
convertible, upon the terms established pursuant to or in accordance with
the provisions of this Indenture, or
(5) subordinate the indebtedness evidenced by the Securities to any
indebtedness of the Company other than Senior Indebtedness.
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.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
73
<PAGE>
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest and
-------------------------------------------------------
Additional Amounts. The Company covenants and agrees for the benefit of the
- ------------------
Holders of each series of Securities that it will duly and punctually pay prior
to noon New York City time on any date of payment the principal of (and premium,
if any) and interest on and any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of such series of
Securities, any coupons
74
<PAGE>
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1005 in respect of principal of (or premium, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable only as Registered Securities, the Company shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of that series pursuant
to Section 1005) or conversion; provided, however, that if the Securities of
-------- -------
that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon
75
<PAGE>
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1005) at the offices specified in the Security,
in London, England, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
-------- -------
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1005) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
Additional Amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of 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 accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, The
City of New York, and initially appoints the Trustee at its Corporate
76
<PAGE>
Trust Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
-------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts 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 principal of (and
premium, if any) 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;
77
<PAGE>
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which 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 sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if
any), interest or Additional Amounts has become due and payable shall be paid to
the Company upon 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 of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, 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 notice to be mailed to the
Holders or published once in an Authorized Newspaper to the effect 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 mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Statement as to Compliance. The Company will deliver
--------------------------
to the Trustee, within 120 days after the end of each fiscal year (which as of
the date hereof is December 31), a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For purposes of
this Section 1006, such
78
<PAGE>
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1005. Additional Amounts. If any Securities of a series
------------------
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest
79
<PAGE>
with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them or in reliance on any Officers' Certificate furnished
pursuant to this Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
80
<PAGE>
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106, not less than 30 days nor more than
60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the
81
<PAGE>
Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate,
and the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to noon New
---------------------------
York City time on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date,
82
<PAGE>
become due and payable at the Redemption Price therein specified in the currency
or currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
-------- -------
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that, except as otherwise provided with
-------- -------
respect to Securities convertible into Common Stock or Preferred Stock,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
- -------
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
83
<PAGE>
SECTION 1107. Securities Redeemed in Part. Any Registered Security
---------------------------
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. Conversion Arrangement on Call for Redemption. In
---------------------------------------------
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee or the Paying Agent in trust for the Holders
of Securities, on or before 10:00 a.m. New York time on the Redemption Date, an
amount not less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the Paying
Agent shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it in the same manner as it would pay moneys
deposited with it by the Company for the redemption of Securities. Without the
Trustee's and the Paying Agent's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee and the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Trustee and the
Paying Agent from, and hold them harmless against, any loss, liability or
expense arising out of or in connection with any such arrangement for the
purpose and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the
84
<PAGE>
Trustee and the Paying Agent (including the fees and expenses of their agents
and counsel) in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of their powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities; provided that such Securities so delivered or
--------
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if
85
<PAGE>
any, which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment
86
<PAGE>
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject
------------------
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the certificate
number or a description of the tenor and terms of the Security, the CUSIP
number, if available, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Security to be repaid, together with
the duly completed form entitled "Option to Elect Repayment" on the reverse of
the Security, will be received by the Trustee not later than the third Business
Day after the date of such telegram, facsimile transmission or letter; provided,
--------
however, that such telegram, facsimile transmission or letter shall only be
- -------
effective if such Security and form duly completed are received by the Trustee
by such third Business Day. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
- -------
the Holders thereof shall have been surrendered as provided in this Article and
as provided by
87
<PAGE>
or pursuant to the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company on the Repayment Date therein specified, and on and after
such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however, that coupons
-------- -------
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided further
-------- -------
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
-------- -------
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in
88
<PAGE>
the case of Original Issue Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- ---------------------------------
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all
its other obligations under such Securities and any coupons appertaining thereto
and this Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the
89
<PAGE>
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1005, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. If specified pursuant to Section
-------------------
301, upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
released from its obligations under any covenant contained herein with respect
to such Outstanding Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee
90
<PAGE>
satisfying the requirements of Section 607 who shall agree to comply with
the provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount (in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity), or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the basis
of the currency, currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of
91
<PAGE>
Counsel stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date
of execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the
92
<PAGE>
provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the deposit pursuant
to Section 1404(a) has been made, the indebtedness represented by such Security
and any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
93
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting
-----------------------------------------
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee
----------------------------------
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, or in London as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled
------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
94
<PAGE>
SECTION 1504. Quorum; Action. The Persons entitled to vote a
--------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
- -------- -------
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
- -------- -------
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request,
95
<PAGE>
demand, authorization, direction, notice, consent, waiver or other action that
this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage in principal amount of all Outstanding Securities
affected thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee
- -----------
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, 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
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
--------
however, that no vote shall
- -------
96
<PAGE>
be cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The
-----------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 1601. Applicability of Article. Securities of any series
------------------------
which are convertible into Common Stock at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 301 for the Securities of any
series) in accordance with this Article. Each reference in this Article Sixteen
to "a Security" or "the Securities" refers to the Securities of the particular
series that is convertible into Common Stock. If more than one series of
Securities with
97
<PAGE>
conversion privileges are Outstanding at any time, the provisions of this
Article Sixteen shall be applied separately to each such series.
SECTION 1602. Right of Holders to Convert Securities into Common
--------------------------------------------------
Stock. Subject to and upon compliance with the terms of the Securities and the
- -----
provisions of Section 1108 and this Article Sixteen, at the option of the Holder
thereof, any Security of any series of any authorized denomination which is
convertible into Common Stock, or any portion of the principal amount thereof
which is $1,000 or any integral multiple of $1,000, may, at any time during the
period specified in the Securities of such series, or in case such Security of
portion thereof shall have been called for redemption, then in respect of such
Security or portion thereof until and including, but not after (unless the
Company shall default in payment due upon the redemption thereof) the close of
business on the Business Day prior to the Redemption Date (except that in the
case of repayment at the option of the Holder, if specified in the terms of the
relevant Security, such right shall terminate upon the Company's receipt of
written notice of the exercise of such option), be converted into duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock,
as specified in such Security, at the conversion price or conversion rate for
each $1,000 principal amount of Securities (such initial conversion rate
reflecting an initial conversion price specified in such Security) in effect on
the conversion date, or, in case an adjustment in the conversion price has taken
place pursuant to the provisions of this Article Sixteen, then at the applicable
conversion price as so adjusted, upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 1002, accompanied by a written notice
of election to convert as provided in Section 1603 and, if so required by the
Company and/or the Trustee, by a written instrument or instruments of transfer
in form satisfactory to the Company and/or the Trustee, as applicable, duly
executed by the Holder thereof or his attorney duly authorized in writing. All
Securities surrendered for conversion shall, if surrendered to the Company or
any conversion agent, be delivered to the Trustee for cancellation and cancelled
by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided
in Section 310.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 1605 or such other or different terms, if any, as may be
specified by Section 301 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
98
<PAGE>
SECTION 1603. Issuance of Shares of Common Stock on Conversions. As
-------------------------------------------------
promptly as practicable after the surrender, as herein provided, of any Security
or Securities for conversion into Common Stock, the Company shall deliver or
cause to be delivered at its said office or agency to or upon the written order
of the Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Common Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made at the time that such Security or Securities shall
have been surrendered for conversion and such notice shall have been received by
the Company or the Trustee, the rights of the Holder of such Security or
Securities as a Holder shall cease at such time, the Person or Persons entitled
to receive the shares of Common Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become either record
holder or holders of such shares of Common Stock at such time and such
conversion shall be at the conversion price in effect at such time. In the case
of any Security of any series which is converted in part only, upon such
conversion, the Company shall execute and, upon the Company's request and at the
Company's expense, the Trustee or an Authenticating Agent shall authenticate and
deliver to the Holder thereof, as requested by such Holder, a new Security or
Securities of such series of authorized denominations in aggregate principal
amount equal to the unconverted portion of such Security.
If the last day on which such Security may be converted is not a
Business Day in a place where the conversion agent for that Security is located,
such Security may be surrendered to that conversion agent on the next succeeding
day that is a Business Day.
The Company shall not be required to deliver certificates for shares
of Common Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Common Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 1604. No Payment or Adjustment for Interest or Dividends.
--------------------------------------------------
Unless otherwise specified as contemplated by Section
99
<PAGE>
301 for Securities of such series, Securities surrendered for conversion into
Common Stock during the period from the close of business on any Regular Record
Date (or Special Record Date) next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (except Securities called for
redemption on a Redemption Date within such period) when surrendered for
conversion must be accompanied by payment (by certified or official bank check
to the order of the Company payable in clearing house funds at the location
where the Securities are surrendered) of an amount equal to the interest thereon
which the Holder is entitled to receive on such Interest Payment Date. Payment
of interest shall be made, on such Interest Payment Date or such other payment
date (as set forth in Section 307), as the case may be, to the Holder of the
Securities as of such Regular Record Date or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of shares of Common Stock
into which such Security is convertible delivered by the Company to the Holder
thereof shall be applied, first, to the portion attributable to the accrued
original issue discount relating to the period from the date of issuance to the
date of conversion of such Security, and, second, to the portion attributable to
the balance of the principal amount of such Security.
SECTION 1605. Adjustment of Conversion Price. Unless otherwise
------------------------------
specified as contemplated by Section 301 for Securities of such series, the
conversion price for Securities convertible into Common Stock shall be adjusted
from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares or (z) combine the
outstanding Common Stock into a smaller number of shares, the conversion
price for the Securities of such series shall be adjusted so that the
Holder of any such Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which he would
have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately
prior to the record date in the case of a dividend or the effective date in
the case of subdivision or combination. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend, except as provided in subsection (h) below, and
shall become effective immediately after the effective date in the case of
a subdivision or combination.
100
<PAGE>
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share of Common Stock (as defined for purposes of this subsection (b) in
subsection (e) below), at the record date for the determination of
stockholders entitled to receive such rights or warrants, the conversion
price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price
in effect immediately prior to the date of issuance of such rights or
warrants by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at such current market price, and the denominator of which
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subsection (h) below, after such record date. In determining whether any
rights or warrants entitle the Holders of the Securities of such series to
subscribe for or purchase shares of Common Stock at less than such current
market price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may
be, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Common
Stock any shares of Capital Stock of the Company (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or
warrants to subscribe for or purchase any of its securities (excluding
those rights or warrants referred to in subsection (b) above) (any of the
foregoing being herein in this subsection (c) called the "Special
Securities"), then, in each such case, unless the Company elects to reserve
such Special Securities for distribution to the Holders of Securities of
such series upon the conversion so that any such Holder converting such
Securities will receive upon such conversion, in addition to the shares of
Common Stock to which such Holder is entitled, the amount and kind of
Special Securities which such Holder would have received if such Holder
had, immediately prior to the record date for
101
<PAGE>
the distribution of the Special Securities, converted Securities into
Common Stock, the conversion price shall be adjusted so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the date of such distribution by a fraction the
numerator of which shall be the current market price per share (as defined
for purposes of this subsection (c) in subsection (e) below) of Common
Stock on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive) of the portion of the Special Securities
so distributed applicable to one share of Common Stock, and the denominator
of which shall be the current market price per share (as defined in
subsection (e) below) of Common Stock; provided, however, that in the event
-------- -------
the then fair market value (as so determined) of the portion of the Special
Securities so distributed applicable to one share of Common Stock is equal
to or greater than the current market price per share (as defined in
subsection (e) below) of Common Stock on the record date mentioned above,
in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such series shall have the right to
receive the amount and kind of Special Securities such holder would have
received had he converted such Securities immediately prior to the record
date for the distribution of the Special Securities. Such adjustment shall
become effective immediately, except as provided in subsection (h) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the number of shares
of Common Stock shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding shares of Common Stock
in the form of any right or warrant to purchase securities of the Company,
or the Company has issued any such right or warrant, then, upon the
expiration of any such unexercised right or unexercised warrant, the
conversion price shall forthwith be adjusted to equal the conversion price
that would have applied had such right or warrant never been declared,
distributed or issued.
(e) For the purpose of any computation under subsection (b) above,
the current market price per share of Common Stock on any date shall be
deemed to be the average of the reported last sales prices for the thirty
consecutive Trading Days (as defined below) commencing forty-five Trading
Days before the date in question. For the purpose of any computation under
subsection (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the reported last sales
prices for the ten consecutive Trading Days before the date in question.
The reported last sales price for each day
102
<PAGE>
(whether for purposes of subsection (b) or subsection (c)) shall be the
reported last sales price, regular way, or, in case no sale takes place on
such day, the average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange Composite
Tape or, if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the National
Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the Common Stock is not
quoted on such National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked prices for the Common Stock on each such day
shall not have been reported through NASDAQ, the average of the bid and
asked prices for such day as furnished by any New York Stock Exchange
member firm regularly making a market in the Common Stock selected for such
purpose by the Board of Directors or a committee thereof or, if no such
quotations are available, the fair market value of the Common Stock as
determined by a New York Stock Exchange Member firm regularly making a
market in the Common Stock selected for such purpose by the Board of
Directors or a committee thereof or, if no such quotations are available,
the fair market value of the Common Stock as determined by a New York Stock
Exchange member firm regularly making a market in the Common Stock selected
for such purpose by the Board of Directors or a committee thereof. As used
herein, the term "Trading Day" with respect to the Common Stock means (x)
if the Common Stock is listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New
York Stock Exchange or such other national securities exchange is open for
business or (y) if the Common Stock is quoted on the National Market System
of the NASDAQ, a day on which trades may be made on such National Market
System or (z) otherwise, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
-------- -------
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, provided, further,
-------- -------
that adjustment shall be required and made in accordance with the
provisions of this Article Sixteen (other than this subsection (f)) not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Stock.
103
<PAGE>
All calculations under this Article Sixteen shall be made to the nearest
cent or to the nearest 1/100 of a share, as the case may be, with one-half
cent and 1/200 of a share, respectively, being rounded upward. Anything in
this Section 1605 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the conversion price, in addition to
those required by this Section 1605, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities,
or distribution of other assets (other than cash dividends) hereafter made
by the Company to its stockholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein provided,
the Company shall promptly file with the Trustee, at the corporate trust
office of the Trustee, and with the office or agency maintained by the
Company for the conversion of Securities of such series pursuant to Section
1002, an Officers' Certificate, setting forth the conversion price after
such adjustment and setting forth a brief statement of the facts requiring
such adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any conversion
agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of a Security of
such series desiring to inspect the same. The Company shall promptly cause
a notice setting forth the adjusted conversion price to be mailed to the
Holders of Securities of such series, as their names and addresses appear
upon the Security Register of the Company.
(h) In any case in which this Section 1605 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y) issuing
to the Holder of any Security of such series converted after such record
date and before the occurrence of such event the additional shares of the
Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (z) paying to such
holder any amount in cash in lieu of any fractional share of Common Stock
pursuant to Section 1606 hereof.
SECTION 1606. No Fractional Shares to be Issued. No fractional
---------------------------------
shares of Common Stock shall be issued upon any conversion of Securities. If
more than one Security of any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities of such series (or
104
<PAGE>
specified portions thereof to the extent permitted hereby) so surrendered.
Instead of a fraction of a share of Common Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment (computed to the nearest cent,
with one-half cent being rounded upward) in respect of such fraction of a share
in an amount equal to the same fractional interest of the reported last sales
price (as defined in Section 1605(e)) of the Common Stock on the Trading Day (as
defined in Section 1605(e)) next preceding the day of conversion.
SECTION 1607. Preservation of Conversion Rights upon Consolidation,
-----------------------------------------------------
Merger, Sale or Conveyance. In case of any consolidation of the Company with,
- --------------------------
or merger of the Company into, any other corporation (other than a consolidation
or merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a series which was convertible into Common
Stock shall have the right thereafter to convert such Security into the kind and
amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Securities might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act as then in effect and shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen. Neither the Trustee nor any conversion agent shall
have any liability or responsibility for determining the correctness of any
provision contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property receivable by
Holders of the Securities upon the conversion of their Securities after any such
consolidation, merger, sale or transfer, or to any adjustment to be made with
respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Officers' Certificate
with respect thereto and an Opinion of Counsel with respect to legal matters
related thereto. If in the case of any such consolidation, merger, sale or
transfer, the stock or other securities and property receivable by a Holder of
the Securities includes stock or other securities and property of a corporation
other than the successor or purchasing corporation, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to
105
<PAGE>
protect the interests of the Holders of the Securities as the Board of Directors
shall reasonably consider necessary. The above provisions of this Section 1607
shall similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 1608. Notice to Holders of the Securities of a Series Prior
-----------------------------------------------------
to Taking Certain Types of Action. With respect to the Securities of any
- ---------------------------------
series, in case:
(a) the Company shall authorize the issuance to all holders of Common
Stock of rights or warrants to subscribe for or purchase shares of its
Capital Stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Stock of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Stock or of any
consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 1002, and shall cause to be mailed to the Holders of
Securities of such series, at their last addresses as they shall appear on the
Security Register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Stock to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Stock shall be
entitled to exchange their Common Stock for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 1608 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
Such notice shall also be published by and at the expense of the Company not
later than the aforesaid filing date at least once in an Authorized Newspaper.
106
<PAGE>
SECTION 1609. Covenants to Reserve Shares for Issuance on Conversion
------------------------------------------------------
of Securities. The Company covenants that at all times it will reserve and keep
- -------------
available out of each class of its authorized Common Stock, free from preemptive
rights, solely for the purpose of issue upon conversation of Securities of any
series as herein provided, such number of shares of Common Stock as shall then
be issuable upon the conversion of all Outstanding Securities of such series.
The Company covenants that all shares of Common Stock which shall be so issuable
shall, when issued or delivered, be duly and validly issued shares of Common
Stock into which Securities of such series are convertible, and shall be fully
paid and nonassessable, free of all liens and charges and not subject to
preemptive rights and that, upon conversion, the appropriate capital stock
accounts of the Company will be duly credited.
SECTION 1610. Compliance with Governmental Requirements. The Company
-----------------------------------------
covenants that if any shares of Common Stock required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or any national or regional securities exchange on
which Common Stock is listed at the time of delivery of any shares of Common
Stock, before such shares may be issued upon conversion, the Company will use
its best efforts to cause such shares to be duly registered, listed or approved,
as the case may be.
SECTION 1611. Payment of Taxes upon Certificates for Shares Issued
----------------------------------------------------
upon Conversion. The issuance of certificates for shares of Common Stock upon
- ---------------
the conversion of Securities shall be made without charge to the converting
Holders for any tax (including, without limitation, all documentary and stamp
taxes) in respect of the issuance and delivery of such certificates, and such
certificates shall be issued in the respective names of, or in such names as may
be directed by, the holders of the Securities converted; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificate in
a name other than that of the Holder of the Security converted, and the Company
shall not be required to issue or deliver such certificate unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
SECTION 1612. Trustee's Duties with Respect to Conversion Provisions.
------------------------------------------------------
The Trustee and any conversion agent shall have no duty, responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture
107
<PAGE>
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the registration under
securities laws, listing, validity or value (or the kind or amount) of any
shares of Common Stock, or of any other securities or property, which may at any
time be issued or delivered upon the conversion of any Security, and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver
any shares of stock or stock certificates or other securities or property upon
the surrender of any Security for the purpose of conversion; and the Trustee and
any conversion agent, subject to the provisions of Section 313 of the Trust
Indenture Act, shall not be responsible for any failure of the Company to comply
with any of the covenants of the Company contained in this Article Sixteen.
SECTION 1613. Conversion of Securities Into Preferred Stock.
---------------------------------------------
Notwithstanding anything to the contrary in this Article Sixteen, the Company
may issue Securities that are convertible into shares of Preferred Stock,
including Preferred Stock convertible into Common Stock, in which case all terms
and conditions relating to the conversion of Securities into Preferred Stock,
including any terms similar to those provided in Sections 1601 through 1612
shall be as provided in or pursuant to an appropriate Board Resolution or in any
indenture supplemental hereto or as otherwise contemplated by Section 301.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
SECTION 1701. Securities Subordinated to Senior Indebtedness. The
----------------------------------------------
Company covenants and agrees, and each Holder of Securities, by his acceptance
thereof, likewise covenants and agrees, that the indebtedness represented by the
Securities and the payment of the principal of (and premium, if any) and
interest and any Additional Amounts payable in respect of each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of
Senior Indebtedness.
In the event (a) of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which complies with the
requirements of Article Eight, or (b) that a default shall have occurred and be
continuing with respect to the payment of principal of (or
108
<PAGE>
premium, if any) or interest on or any Additional Amounts payable in respect of
any Senior Indebtedness, or (c) that the principal of the Securities of any
series (or in the case of Original Issue Discount Securities, the portion of the
principal amount thereof referred to in Section 502) shall have been declared
due and payable pursuant to Section 502 and such declaration shall not have been
rescinded and annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b)
the holders of all Senior Indebtedness, and in the circumstance described
in the foregoing clause (c) the holders of all Senior Indebtedness (other
than Other Obligations) outstanding at the time the principal of such
Securities (or in the case of Original Issue Discount Securities, such
portion of the principal amount) shall have been so declared due and
payable, shall first be entitled to receive payment of the full amount due
thereon in respect of principal, premium (if any), Interest and Additional
Amounts, or provision shall be made for such payment in money or money's
worth, before the Holders of any of the Securities are entitled to receive
any payment on account of the principal of (or premium, if any) or interest
on or any Additional Amounts in respect of the indebtedness evidenced by
the Securities;
(2) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in this Article with respect to the securities, to the payment of
all Senior Indebtedness, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or
readjustment), to which the Holders of any of the Securities would be
entitled except for the provisions of this Article shall be paid or
delivered by the person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture under
which any instrument evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders of
the indebtedness evidenced by the Securities under this Indenture; and
109
<PAGE>
(3) in the event that, notwithstanding the foregoing, any payment by,
or distribution of assets of, the Company of any kind or character, whether
in cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this
Article with respect to the Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of Senior
Indebtedness are not altered by such reorganization or readjustment), shall
be received by the Holders of any of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid
over to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such Senior
Indebtedness.
SECTION 1702. Subrogation. Subject to the payment in full of all
-----------
Senior Indebtedness to which the indebtedness evidenced by the Securities is in
the circumstances subordinated as provided in Section 1701, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article which otherwise would have
been made to the Holders of the Securities shall be deemed to be a payment by
the Company on account of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness.
SECTION 1703. Obligation of the Company Unconditional. Nothing
---------------------------------------
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
and any Additional Amounts in respect of the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect
110
<PAGE>
the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness nor shall anything herein
or therein prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment or distribution,
delivered to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1704. Payments on Securities Permitted. Nothing contained in
--------------------------------
this Article or elsewhere in this Indenture, or in any of the Securities, shall
affect the obligation of the Company to make, or prevent the Company from
making, payment of the principal of (or premium, if any) or interest on or any
Additional Amounts in respect of the Securities in accordance with the
provisions hereof and thereof, except as otherwise provided in this Article.
SECTION 1705. Effectuation of Subordination by Trustee. Each Holder
----------------------------------------
of the Securities, by his acceptance thereof, authorizes and directs the Trustee
in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
SECTION 1706. Knowledge of Trustee. Notwithstanding the provisions
--------------------
of this Article or any other provisions of this Indenture, the Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment or moneys to or by the Trustee, or the taking
of any other action by the Trustee, unless and until the Trustee shall have
received written notice thereof from the Company, any Holder of Securities, any
paying or conversion agent of the Company or the holder or representative of any
class of Senior Indebtedness; provided, however, that if the Trustee shall not
have received the notice provided for in
111
<PAGE>
this Section at least 3 Business Days prior to the date upon which, by the terms
hereof, any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on,
or Additional Amounts in respect of, any Security) then, anything herein
contained to the contrary notwithstanding, the Trustee shall have all power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it during or after such 3 Business Day period.
SECTION 1707. Trustee May Hold Senior Indebtedness. The Trustee in
------------------------------------
its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the Trust Indenture Act or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments
to, the Trustee (under or pursuant to Section 606) to Senior Indebtedness.
SECTION 1708. Rights of Holders of Senior Indebtedness Not Impaired.
-----------------------------------------------------
No right of any present or future holder of any Senior Indebtedness to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any non-
compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless or any knowledge thereof any such holder may have or be
otherwise charged with.
112
<PAGE>
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
113
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LEVEL 3 COMMUNICATIONS, INC.
[SEAL]
By_______________________
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
[SEAL]
By_______________________
Title:
114
<PAGE>
STATE OF NEBRASKA )
) ss:
COUNTY OF [ ] )
On the ____ day of _________, ____, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he resides at ________________, ______________________, that he is
________________________ of Level 3 Communications, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
115
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _______ day of _____________, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that [s]he resides at _________________, that [s]he is a ________________ of
IBJ Whitehall Bank & Trust Company, one of the corporations described in and
which executed the foregoing instrument; that [s]he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [s]he signed his or her name thereto by like authority.
[Notarial Seal]
________________________
Notary Public
COMMISSION EXPIRES
116
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Level 3 Communications, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin
A-1
<PAGE>
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
_________________ of such interest in the above-captioned Securities in respect
of which we are not able to certify and as to which we understand an exchange
for an interest in a Permanent Global Security or an exchange for and delivery
of definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ___________________, ____
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
________________________________
(Authorized Signator)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _____________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
persons(s)"), (ii) is owned by United States persons(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Level 3 Communications,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-3
<PAGE>
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _______________, ____
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By ____________________________
A-4
<PAGE>
EXHIBIT 4.6
DEPOSIT AGREEMENT*
dated as of ______________, ____
among
LEVEL 3 COMMUNICATIONS, INC.
and
[NAME OF DEPOSITARY], As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
REPRESENTING INTERESTS
IN
PREFERRED STOCK
- ----------------------
* A separate Deposit Agreement will be entered into with respect to each
series or class of Preferred Stock issued under the Registration Statement
to which this Form of Deposit Agreement has been filed as an Exhibit.
Options represented by bracketed or blank sections herein shall be
determined in conformity with the applicable prospectus supplement or
supplements.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
ARTICLE I. DEFINITIONS 1
Section 1.1. Certificate of Designation................................................................1
Section 1.2. Certificate of Incorporation..............................................................1
Section 1.3. Common Stock..............................................................................1
Section 1.4. Company...................................................................................2
Section 1.5. Corporate Office..........................................................................2
Section 1.6. Depost Agreement..........................................................................2
Section 1.7. Depositary................................................................................2
Section 1.8. Depositary Share..........................................................................2
Section 1.9. Depositary's Agent........................................................................2
Section 1.10. Exchange Debt Securities.................................................................2
Section 1.11. Indenture................................................................................2
Section 1.12. Preferred Stock..........................................................................2
Section 1.13. Receipt..................................................................................3
Section 1.14. Record Holder............................................................................3
Section 1.15. Registrar................................................................................3
Section 1.16. Securities Act...........................................................................3
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS.................................................................3
Section 2.1. Form and Transferability of Receipts......................................................3
Section 2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof.........4
Section 2.3. Optional Redemption of Preferred Stock for Cash...........................................5
Section 2.4. Optional Exchange or Preferred Stock for Common Stock or Exchange Debt Securities.........7
Section 2.5. Transfers of Receipts.....................................................................8
Section 2.6. Combinations and Split-ups of Receipts....................................................8
Section 2.7. Surrender of Receipts and Withdrawal ofPreferred Stock....................................9
Section 2.8. Limitations on Execution and Delivery, Transfer, Split-up, Combination,
Surrender and Exchange of Receipts......................................................10
Section 2.9. Lost Receipts, etc........................................................................10
Section 2.10. Cancellation and Destruction of Surrendered Receipts.....................................11
Section 2.11. Conversion of Preferred Stock into Common Stock or Exchange Debt Securities..............11
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY......................................14
Section 3.1. Filing Proofs, Certificates and Other Information.........................................14
Section 3.2. Payment of Taxes or Other Governmental Charges............................................14
Section 3.3. Representations and Warranties as to Preferred Stock......................................15
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 3.4. Representation and Warranty as to Receipts................................................15
Section 3.5. Representation and Warranty as to Common Stock............................................15
Section 3.6. Representation and Warranty as to Common Stock or Exchange Debt Securities................15
ARTICLE IV. THE PREFERRED STOCK, NOTICES.....................................................................16
Section 4.1. Cash Distributions........................................................................16
Section 4.2. Distributions Other Than Cash.............................................................16
Section 4.3. Subscription Rights, Preferences or Privileges............................................17
Section 4.4. Notice of Dividends, Fixing of Record Date for Holders of Receipts........................18
Section 4.5. Voting Rights.............................................................................18
Section 4.6. Changes Affecting Preferred Stock and Reclassifications, Recapitalizations, etc...........19
Section 4.7. Reports...................................................................................19
Section 4.8. Lists of Receipt Holders..................................................................19
ARTICLE V. THE DEPOSITARY AND THE COMPANY....................................................................20
Section 5.1. Maintenance of Offices, Agencies, Transfer Books by the Depositary, the Registrar.........20
Section 5.2. Prevention or Delay in Performance by the Depositary, the Depositary's Agents
or the Company..........................................................................20
Section 5.3. Obligations of the Depositary, theDepositary's Agents and the Company.....................21
Section 5.4. Resignation and Removal of theDepositary, Appointment of Successor Depositary.............22
Section 5.5. Corporate Notices and Reports.............................................................23
Section 5.6. Indemnification by the Company............................................................24
Section 5.7. Fees, Charges and Expenses................................................................24
ARTICLE VI. AMENDMENT AND TERMINATION........................................................................24
Section 6.1. Amendment.................................................................................24
Section 6.2. Termination...............................................................................25
ARTICLE VII. MISCELLANEOUS...................................................................................26
Section 7.1. Counterparts..............................................................................26
Section 7.2. Exclusive Benefits of Parties.............................................................26
Section 7.3. Invalidity of Provisions..................................................................26
Section 7.4. Notices...................................................................................26
Section 7.5. Depositary's Agents.......................................................................27
Section 7.6. Holders of Receipts Are Parties...........................................................27
Section 7.7. Governing Law.............................................................................27
Section 7.8. Inspection of Deposit Agreement and Certificate of Designation............................28
Section 7.9. Headings..................................................................................28
TESTIMONIUM.............................................................................................31
SIGNATURES..............................................................................................31
EXHIBIT A..............................................................................................A-1
</TABLE>
ii
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ______________, ____, among LEVEL 3
COMMUNICATIONS, INC., a Delaware corporation (the "Company"), [NAME OF BANK], [a
New York state-chartered bank], as Depositary, and all holders from time to time
of Depositary Receipts issued hereunder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of the Company's Preferred Stock
(as hereinafter defined), with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Preferred Stock deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form
of Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I.
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Depositary Receipts:
Section 1.1. The term "Certificate of Designation" shall mean
the Certificate of Designation adopted by the Board of Directors of the Company
or a duly authorized committee thereof establishing and setting forth the
rights, preferences, privileges and limitations of the Preferred Stock.
Section 1.2. The term "Certificate of Incorporation" shall
mean the Restated Certificate of Incorporation, as amended from time to time, of
the Company.
Section 1.3. The term "Common Stock" shall mean shares of the
Company's common stock, $.01 par value per share.
<PAGE>
Section 1.4. The term "Company" shall mean Level 3
Communications, Inc., a Delaware corporation having its principal office
at 3555 Farnam Street, Omaha, Nebraska 68131, and its successors.
Section 1.5. The term "Corporate Office" shall mean the
corporate office of the Depositary in the Borough of Manhattan, New York, New
York at which at any particular time its business in respect of matters governed
by this Deposit Agreement shall be administered, which, at the date of this
Deposit Agreement, is located at __________________, New York, New York _______.
Section 1.6. The term "Deposit Agreement" shall mean this
Agreement, as the same may be amended, modified or supplemented from time to
time.
Section 1.7. The term "Depositary" shall mean [name of bank],
a company having its principal office at ___________________, New York, New York
________, and any successor as depositary hereunder.
Section 1.8. The term "Depositary Share" shall mean an
interest in one ________ of a share of Preferred Stock deposited with the
Depositary hereunder and the same proportionate interest in any and all other
property received by the Depositary in respect of such share of Preferred Stock
and held under this Deposit Agreement, all as evidenced by the Receipts issued
hereunder. Subject to the terms of this Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges of the Preferred Stock represented by such Depositary Share,
including the dividend, voting, conversion, redemption and liquidation rights
contained in the Certificate of Designation, and to the benefits of all
obligations of the Company under the Certificate of Designation.
Section 1.9. The term "Depositary's Agent" shall mean an agent
appointed by the Depositary as provided, and for the purposes specified, in
Section 7.5.
Section 1.10. The term "Exchange Debt Securities" shall mean
any senior or subordinated notes, bonds, debentures and/or other evidence of
indebtedness of the Company which may be issued pursuant to the Indenture in
exchange for the Preferred Stock pursuant to the terms of the Preferred Stock.
Section 1.11. The term "Indenture" shall mean the indenture
relating to the Exchange Debt Securities.
Section 1.12. The term "Preferred Stock" shall mean shares of
the Company's [describe class or issuance of preferred
2
<PAGE>
stock of the Company], heretofore validly issued, fully paid and nonassessable.
Section 1.13. The term "Receipt" shall mean a Depositary
Receipt issued hereunder to evidence one or more Depositary Shares.
Section 1.14. The term "record holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
Section 1.15. The term "Registrar" shall mean any bank or
trust company appointed to register Receipts as herein provided.
Section 1.16. The term "Securities Act" shall mean the
Securities Act of 1933, as amended.
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Receipts shall be executed by the
Depositary by the manual signature of a duly authorized signatory of the
Depositary, provided that such signature may be a facsimile if a Registrar
(other than the Depositary) shall have countersigned the Receipts by manual
signature of a duly authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts
shall be in denominations of any number of whole Depositary Shares. All Receipts
shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any
3
<PAGE>
applicable law or regulation or with the rules and regulations of any securities
exchange upon which the Preferred Stock, the Depositary Shares or the Receipts
may be listed or to conform with any usage with respect thereto, or to indicate
any special limitations or restrictions to which any particular Receipts are
subject by reason of the date of issuance of the Preferred Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced
by such Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.5, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
Section 2.2. Deposit of Preferred Stock; Execution and
Delivery of Receipts in Respect Thereof. Subject to the terms and conditions of
this Deposit Agreement, the Company may from time to time deposit such Preferred
Stock under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates for the Preferred Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and (ii) a written
order of the Company directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Preferred Stock.
If required by the Depositary, Preferred Stock presented for
deposit at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, that will provide for the prompt
transfer to the Depositary or its nominee of any dividend or right to subscribe
for additional Preferred Stock or to receive other property that any person in
whose name the Preferred Stock is or has been registered may thereafter receive
upon or in respect of such deposited Preferred Stock, or in lieu thereof such
agreement of indemnity or other agreement as shall be satisfactory to the
Depositary.
Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder, together with the
other documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished,
4
<PAGE>
present such certificate or certificates to the registrar and transfer agent of
the Preferred Stock for transfer and registration in the name of the Depositary
or its nominee of the Preferred Stock being deposited. Deposited Preferred Stock
shall be held by the Depositary in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Preferred Stock to be deposited hereunder, together with the
other documents specified above, and upon recordation of the Preferred Stock on
the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver to, or upon the order of, the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section 2.2, a Receipt or Receipts for the number of whole Depositary
Shares representing the Preferred Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Corporate Office, except
that, at the request, risk and expense of any person requesting such delivery,
such delivery may be made at such other place as may be designated by such
person. In each case, delivery will be made only upon payment to the Depositary
of all taxes and other governmental charges and any fees payable in connection
with such deposit and the transfer of the deposited Preferred Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Stock as
set forth in the Certificate of Designation, as such may be amended.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
Section 2.3. Optional Redemption of Preferred Stock for Cash.
Whenever the Company shall elect to redeem shares of Preferred Stock for cash,
it shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 45 days' prior written notice of the date of such
proposed redemption of Preferred Stock and of the number of such shares of
Preferred Stock held by the Depositary to be redeemed. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the cash redemption price (determined pursuant to the Certificate of
Designation) of the Preferred Stock deposited with the Depositary to be
redeemed, the Depositary shall redeem (using the proceeds of such redemption)
the number of Depositary Shares representing such redeemed
5
<PAGE>
Preferred Stock. The Depositary shall mail, first-class postage prepaid, notice
of the redemption of Preferred Stock and the proposed simultaneous redemption of
the Depositary Shares representing the Preferred Stock to be redeemed, not less
than 30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: the record date
for the purposes of such redemption; the cash redemption date; the number of
Depositary Shares to be redeemed; if fewer than all the Depositary Shares held
by any holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; the cash redemption price; the place or places
where Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for payment of the cash redemption price; and that from and after the cash
redemption date dividends in respect of the Preferred Stock represented by the
Depositary Shares to be redeemed will cease to accrue and the conversion rights
in respect of such Preferred Stock will terminate at the close of business on
the last business day preceding such cash redemption date. In case fewer than
all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed shall be selected by lot or pro rata (as nearly as may be) or in
any other equitable manner determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph), all dividends in
respect of the shares of Preferred Stock called for redemption shall cease to
accrue, the conversion rights in respect of such Preferred Stock shall
terminate, the Depositary Shares called for redemption shall be deemed no longer
to be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the cash redemption price) shall,
to the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed at a cash redemption price
per Depositary Share equal to one quarter of the cash redemption price per share
paid in respect of the shares of Preferred Stock pursuant to the Certificate of
Designation plus any other money and other property represented by each such
Depositary Share. The foregoing shall be subject further to the terms and
conditions of the Certificate of Designation.
6
<PAGE>
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with payment of the
cash redemption price for the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Preferred Stock to be
redeemed and ending at the close of business on the day of the mailing of notice
of redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part, except as provided in the preceding paragraph of
this Section 2.3.
Section 2.4. Optional Exchange or Preferred Stock for Common
Stock or Exchange Debt Securities. Whenever the Company shall elect to exchange
all of the shares of Preferred Stock for Common Stock or Exchange Debt
Securities, it shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 45 days' prior written notice of the date of
such proposed exchange of Preferred Stock. On the date of such exchange,
provided that the Company shall then have issued and deposited with the
Depositary the Common Stock or Exchange Debt Securities for the Preferred Stock
to be exchanged, the Depositary shall exchange the Depositary Shares
representing the Preferred Stock in exchange for the Common Stock or Exchange
Debt Securities issued in such exchange. The Depositary shall mail notice of
such exchange and the proposed simultaneous exchange of the Depositary Shares
representing the Preferred Stock to be exchanged, first-class postage prepaid,
not less than 30 and not more than 60 days prior to the date fixed for exchange
for such Preferred Stock and Depositary Shares (the "exchange date"), to the
holders of record on the record date for such exchange (determined pursuant to
Section 4.4) of the Receipts evidencing the Depositary Shares to be so
exchanged, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any notice shall affect the sufficiency of the
proceedings for exchange as to other holders. The Company shall provide the
Depositary with such notice and each such notice shall state the record date for
the purposes of such exchange, the exchange date, the place or places where
Receipts evidencing Depositary Shares are to be surrendered for exchange, that
dividends in respect of the Preferred Stock represented by the Depositary Shares
to be exchanged will cease to accrue at the close of business on such exchange
date, and that the conversion rights in respect thereof will terminate at the
close of business on the last business day preceding such exchange date.
7
<PAGE>
Notice having been mailed by the Depositary as aforesaid, from
and after the exchange date (unless the Company shall default in issuing the
Common Stock or Exchange Debt Securities in exchange for, or in making the final
dividend payment on, the outstanding shares of Preferred Stock on the exchange
date), all dividends in respect of the shares of Preferred Stock so called for
exchange shall cease to accrue, the conversion rights in respect thereof shall
terminate, the Depositary Shares being exchanged shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the Common Stock or Exchange Debt Securities
to be exchanged therefor) shall, to the extent of such Depositary Shares, cease
and terminate and, upon surrender in accordance with said notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Company or the Depositary shall so require and the notice shall
so state), such Depositary Shares shall be accepted in exchange for such Common
Stock or Exchange Debt Securities at an exchange rate per Depositary Share equal
to one _____ of the exchange rate per share in respect of the shares of
Preferred Stock plus all money and other property, if any, represented by each
such Depositary Share, including all amounts paid by the Company in respect of
dividends which on the exchange date have accrued on the shares of Preferred
Stock to be so exchanged and have not theretofore been paid. The foregoing shall
further be subject to the terms and conditions of the Certificate of
Designation.
Section 2.5. Transfers of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall make transfers on its
books from time to time of Receipts upon any surrender thereof by the holder in
person or by a duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement, together with evidence
of the payment of any transfer taxes as may be required by law. Upon such
surrender, the Depositary shall execute a new Receipt or Receipts and deliver
the same to or upon the order of the person entitled thereto evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Section 2.6. Combinations and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office or such other office
as the Depositary may designate for the purpose of effecting a split-up or
combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
8
<PAGE>
Section 2.7. Surrender of Receipts and Withdrawal of Preferred
Stock. Any holder of a Receipt or Receipts may withdraw any or all of the
Preferred Stock represented by the Depositary Shares evidenced by such Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office or at such
other office as the Depositary may designate for such withdrawals; provided,
that a holder of a Receipt or Receipts may not withdraw stock (or money and
other property, if any, represented thereby) which has previously been called
for redemption or exchange. After such surrender, without unreasonable delay,
the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of shares of
Preferred Stock and all such money and other property, if any, represented by
the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Preferred Stock will not
thereafter be entitled to deposit such stock hereunder or to receive Depositary
Shares therefor. If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary Shares
representing the number of shares of Preferred Stock to be withdrawn, the
Depositary shall at the same time, in addition to such number of shares of
Preferred Stock and such money and other property, if any, to be withdrawn,
deliver to such holder, or (subject to Section 2.5) upon his order, a new
Receipt or Receipts evidencing such excess number of whole Depositary Shares. In
no event will fractional shares of stock be distributed by the Depositary.
Delivery of the Preferred Stock and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate, which, if required
by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk and expense of the holder surrendering such Receipt or Receipts
and for the account of the holder thereof, such delivery
9
<PAGE>
may be made at such other place as may be designated by such holder.
Section 2.8. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt or the exercise of any conversion right
referred to in Section 2.11, the Depositary, any of the Depositary's Agents or
the Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Stock being deposited or withdrawn (provided that the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of Common Stock upon conversion; and provided further that the holder
of such Receipt shall pay the amount of any tax which is due if the shares are
to be issued in a name other than the name of such holder)); (ii) the production
of proof satisfactory to it as to the identity and genuineness of any signature;
and (iii) compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Preferred Stock may be refused, the delivery of
Receipts against Preferred Stock may be suspended, the transfer of Receipts may
be refused, the exercise of any conversion right referred to in Section 2.11 may
be suspended, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any provision of
this Deposit Agreement. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any shares
of Preferred Stock that are required to be registered under the Securities Act
and are not so registered and the Company shall deliver to the Depositary
written notice that, at the time of deposit, a registration statement under the
Securities Act is in effect as to such shares of Preferred Stock.
Section 2.9. Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt; provided that, the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the
10
<PAGE>
authenticity thereof and of his ownership thereof, (ii) reasonable
indemnification satisfactory to the Depositary and (iii) payment of any expense
(including fees, charges and expenses of the Depositary) in connection with such
execution and delivery.
Section 2.10. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
[Section 2.11. Conversion of Preferred Stock into Common Stock
or Exchange Debt Securities. It is understood and agreed that the Depositary
Shares are not convertible into the Common Stock or any other securities or
property of the Company. Nevertheless, as a matter of convenience, the Company
hereby agrees to accept (or to cause its conversion agent to accept) the
delivery of Receipts for the purpose effecting conversions of the Preferred
Stock utilizing the same procedures as those provided for delivery of Preferred
Stock certificates to effect such conversions in accordance with the terms and
conditions of the Certificate of Designation; provided, however, that only whole
Depositary Shares may be so submitted for conversion.
Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion of any specified
number of whole or fractional shares of Preferred Stock represented by the
Depositary Shares evidenced by such Receipts into the number of whole shares of
Common Stock, other shares of Preferred Stock or Exchange Debt Securities, as
the case may be, obtained by dividing the aggregate liquidation preference of
such Depositary Shares by the Conversion Price (as such term is defined in the
Certificate of Designation) then in effect, as such Conversion Price may be
adjusted by the Company from time to time as provided in the Certificate of
Designation. Subject to the terms and conditions of this Deposit Agreement and
the Certificate of Designation, a holder of a Receipt or Receipts evidencing
Depositary Shares representing whole or fractional shares of Preferred Stock may
surrender such Receipt or Receipts to the Depositary at the Depositary's Office
or to such office or to such Depositary's Agents as the Depositary may designate
for such purpose, together with (i) a notice of conversion thereof duly
completed and executed (a "Notice of Conversion"), and (ii) any payment in
respect of dividends required by the fifth paragraph of this Section 2.11,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Preferred Stock
specified in such Notice of Conversion into whole shares of Common Stock, other
shares of Preferred Stock or Exchange Debt Securities, as the case may be. In
the event that a holder delivers to the Depositary for conversion a Receipt or
Receipts which in the aggregate are convertible into
11
<PAGE>
less than one whole share of Common Stock, other shares of Preferred Stock or
Exchange Debt Securities, as the case may be, or any number of whole shares of
Common Stock, Preferred Stock or Exchange Debt Securities plus an excess
constituting less than one whole share of Common Stock, Preferred Stock or
Exchange Debt Securities, the holder shall receive payment in lieu of such
fractional shares of Common Stock, Preferred Stock or Exchange Debt Securities,
as the case may be, otherwise issuable in accordance with the last paragraph of
this Section 2.11. If more than one Receipt shall be delivered for conversion at
one time by the same holder, the number of whole shares of Common Stock,
Preferred Stock or Exchange Debt Securities, as the case may be, issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts,
together with a Notice of Conversion, duly completed and executed, directing the
Depositary to instruct the Company to cause the conversion of a specified number
of shares or fractions thereof of Preferred Stock, the Depositary shall, on the
date of receipt of such Notice of Conversion, instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written Notice of Conversion to the
Depositary and (ii) to cause the delivery to the holder or holders of such
Receipts of a certificate or certificates evidencing the number of whole shares
of Common Stock, Preferred Stock or Exchange Debt Securities, as the case may
be, and the amount of money, if any, to be delivered to the holders of Receipts
surrendered for conversion in payment of any fractional shares of Common Stock,
Preferred Stock or Exchange Debt Securities, as the case may be, otherwise
issuable. The Company shall, as promptly as practicable after receipt thereof,
cause the delivery to such holder or holders of (i) a certificate or
certificates evidencing the number of whole shares of Common Stock, Preferred
Stock or Exchange Debt Securities, as the case may be, into which the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt or Receipts
has been converted and (ii) any money or other property to which the holder or
holders are entitled. The person or persons in whose name or names any
certificate or certificates for shares of Common Stock, Preferred Stock or
Exchange Debt Securities, as the case may be, shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at the close of business on the date such Receipt or
Receipts shall have been surrendered to and a Notice of Conversion received by
the Depositary, unless the stock transfer books of the Company shall be closed
on that date, in which event such person or persons shall be deemed to have
become such holder or holders of record on the next succeeding day on which such
stock transfer books are open. Upon such conversion, the Depositary (i) shall
deliver to the holder a Receipt evidencing the number of Depositary Shares, if
any, which such holder has elected not to convert in excess of the number of
Depositary Shares representing Preferred Stock which has been so
12
<PAGE>
converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (ii) shall deliver for cancellation to the
transfer agent for the Preferred Stock the shares of Preferred Stock represented
by the Depositary Shares evidenced by the Receipts so surrendered and so
converted.
If any Preferred Stock shall be called by the Company for
redemption, the Depositary Shares representing such Preferred Stock may be
converted into Common Stock or Exchange Debt Securities as provided in this
Deposit Agreement until and including, but not after, the close of business on
the Redemption Date unless the Company shall default in making payment of the
amount payable upon such redemption. Upon receipt by the Depositary of a Receipt
or Receipts representing any Preferred Stock called for redemption, together
with a properly completed and executed Notice of Conversion, the shares of
Preferred Stock held by the Depositary represented by such Depositary Shares for
which conversion is requested shall be deemed to have been received by the
Company for conversion.
Upon any conversion of the Preferred Stock underlying the
Depositary Shares, no allowance, adjustment or payment shall be made with
respect to accrued dividends upon such Preferred Stock except that if any holder
of a Receipt surrenders such Receipt with instructions to the Depositary for
conversion of the underlying Preferred Stock evidenced thereby during the period
between the opening of business on any dividend record date and the close of
business on the corresponding dividend payment date (except shares called for
redemption on a Redemption Date during such period), such Receipt must be
accompanied by a payment equal to the dividend thereon, if any, which the holder
of record of such Receipt is entitled to receive on such dividend payment date
in respect of the underlying Preferred Stock to be converted.
Upon the conversion of any shares of Preferred Stock for which
a Notice of Conversion has been received by the Depositary, all dividends in
respect of such Depositary Shares shall cease to accrue, such Depositary Shares
shall be deemed no longer outstanding, all rights of the holder of the Receipt
with respect to such Depositary Shares (except the right to receive the Common
Stock, Preferred Stock or Exchange Debt Securities, as the case may be, any cash
payable with respect to any fractional shares of Common Stock, Preferred Stock
or Exchange Debt Securities, as the case may be, as provided herein and any cash
payable on account of accrued dividends in respect of the Preferred Stock so
converted and any Receipts evidencing Depositary Shares not so converted) shall
terminate, and the Receipt evidencing such Depositary Shares shall be cancelled
in accordance with Section 2.10 hereof.
No fractional shares of Common Stock, Preferred Stock or
Exchange Debt Securities shall be issuable upon conversion of Preferred Stock
underlying the Depositary Shares. If, except for the provisions of this Section
2.11 and the Certificate of
13
<PAGE>
Designation, any holder of Receipts surrendered with instructions to the
Depositary for conversion of the underlying Preferred Stock would be entitled to
a fractional share of Common Stock, Preferred Stock or Exchange Debt Securities
upon such conversion, the Company shall cause to be delivered to such holder an
amount in cash for such fractional share determined in accordance with the
Certificate of Designation.]
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information. Any person presenting Preferred Stock for deposit or any holder of
a Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the Preferred Stock represented by the Depositary Shares evidenced by any
Receipt, the distribution of any dividend or other distribution, the sale of any
rights or of the proceeds thereof, the exercise of any conversion right referred
to in Section 2.11, the delivery of any Common Stock or Exchange Debt Securities
upon such conversion or the delivery of any Common Stock or Exchange Debt
Securities pursuant to Section 2.4 upon such exchange until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
Section 3.2.. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf of
the Depositary with respect to any Receipt, the Depositary Shares evidenced by
such Receipt, the Preferred Stock (or any fractional interest therein)
represented by such Depositary Shares, the exercise of any conversion right
referred to in Section 2.11 or any transaction referred to in Section 4.6, such
tax (including transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt; provided that, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of Common Stock upon conversion; and provided further, that the holder
of such Receipt shall pay the amount of any tax which is due if the shares are
to be issued in a name other than the name of such holder. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any dividend or other distribution may be withheld,
such conversion right may be refused and any part or all of the Preferred Stock
or other property represented by the Depositary Shares evidenced by such
14
<PAGE>
Receipt may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of such
Receipt remaining liable for any deficiency. In the event the Depositary is
required to pay any such amounts, the Company shall reimburse the Depositary for
payment thereof upon the request of the Depositary and the Depositary shall,
upon the Company's request and as instructed by the Company, pursue its rights
against such holder at the Company's expense.
Section 3.3. Representations and Warranties as to Preferred
Stock. In the case of the initial deposit of the Preferred Stock, the Company
and, in the case of subsequent deposits thereof, each person so depositing
Preferred Stock under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Preferred Stock and each certificate therefor
are valid and that the person making such deposit is duly authorized to do so.
The Company hereby further represents and warrants that the Preferred Stock,
when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred Stock
and the issuance of Receipts.
Section 3.4. Representation and Warranty as to Receipts. The
Company hereby represents and warrants that the Receipts, when issued, will
represent legal and valid interests in the Preferred Stock. Such representation
and warranty shall survive the deposit of the Preferred Stock and the issuance
of Receipts.
Section 3.5. Representation and Warranty as to Common Stock.
The Company hereby represents and warrants that the Common Stock issuable upon
conversion of the Preferred Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the conversion of the Preferred Stock into such Common Stock.
Section 3.6. Representation and Warranty as to Common Stock or
Exchange Debt Securities. The Company hereby represents and warrants that the
Common Stock or Exchange Debt Securities issuable upon conversion of the
Preferred Stock, when issued, will be duly authorized and constitute legal,
valid and binding obligations of the Company in accordance with their terms and
the Indenture, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws now or hereinafter in effect
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law). Such
15
<PAGE>
representation and warranty shall survive the conversion of the Preferred Stock
into such Common Stock or Exchange Debt Securities.
ARTICLE IV.
THE PREFERRED STOCK, NOTICES
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Preferred Stock,
including any cash received upon redemption of any shares of Preferred Stock
pursuant to Section 2.3, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or
the Depositary shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Preferred Stock an amount
on account of taxes or as otherwise required by law, regulation or court order,
the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary shall distribute
or make available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of Depositary
Shares a fraction of one cent and any balance not so distributable shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
Section 4.2. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash on the Preferred
Stock, the Depositary shall, subject to Section 3.2, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Company after consultation with the
Depositary, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or as otherwise
required by law, regulation or court order), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of
16
<PAGE>
the securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Section 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received in
cash.
Section 4.3. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts if the Company so directs in such
manner as the Company shall instruct (including by the issue to such record
holders of warrants representing such rights, preferences or privileges);
provided, however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by holders of Receipts who do not desire to exercise such
rights, preferences or privileges, the Depositary shall then, if so instructed
by the Company, and if applicable laws or the terms of such rights, preferences
or privileges so permit, sell such rights, preferences or privileges of such
holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall be distributed by
the Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.1 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts to
cause such registration statement to become effective sufficiently in advance of
the expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act.
17
<PAGE>
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
holders of Preferred Stock are entitled to notice or (ii) any election on the
part of the Company to redeem any shares of Preferred Stock, the Depositary
shall in each such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to the Preferred Stock) for
the determination of the holders of Receipts who shall be entitled to receive
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or whose
Depositary Shares are to be so redeemed.
Section 4.5. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.4 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the Certificate
of Designation, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred Stock represented by their
respective Depositary Shares and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Preferred Stock or cause such
Preferred Stock to be voted. In the absence of specific instructions from the
holder of a
18
<PAGE>
Receipt, the Depositary will abstain from voting to the extent of the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Preferred Stock and
Reclassifications, Recapitalizations, etc. Upon any split-up, consolidation or
any other reclassification of Preferred Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting the Company or
to which it is a party or sale of all or substantially all of the Company's
assets, the Depositary shall, upon the instructions of the Company, treat any
shares of stock or other securities or property (including cash) that shall be
received by the Depositary in exchange for or upon conversion of or in respect
of the Preferred Stock as new deposited property under this Deposit Agreement,
and Receipts then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so received in
exchange for or upon conversion or in respect of such Preferred Stock. In any
such case the Depositary may, in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited property. Anything to the contrary herein
notwithstanding, holders of Receipts shall have the right from and after the
effective date of any such change in par or stated value, split-up, combination
or other reclassification of the Preferred Stock or any such recapitalization,
reorganization, merger, amalgamation or consolidation to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the
Preferred Stock represented thereby only into or for, as the case may be, the
kind and amount of shares of stock and any other securities and property and
cash into which the Preferred Stock represented by such Receipts might have been
converted or for which such Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
Section 4.7. Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office and at such other
places as it may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are both received
by the Depositary as the holder of Preferred Stock and made generally available
to the holders of Preferred Stock.
Section 4.8. Lists of Receipt Holders. Promptly upon request
by the Company, the Depositary shall, [at the Company's] expense up to four
times per calendar year, furnish to the Company a list, as of a recent date, of
the names, addresses and holdings of Depositary Shares of all persons in whose
names Receipts are registered on the books of the Depositary. If the Company
shall make more than four such requests during any calendar year, then in each
case the Depositary shall promptly
19
<PAGE>
upon the Company's request furnish it with such a list as of a recent date, but
the cost of complying with each such request shall be borne by the Company.
ARTICLE V.
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies, Transfer Books
by the Depositary, the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain at the Corporate Office
facilities for the execution and delivery, transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal of
Preferred Stock and at the offices of the Depositary's Agents, if any,
facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for
the registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary shall consult with the Company upon receipt of
any request for inspection. The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Preferred Stock represented by such Depositary Shares shall be listed on the
New York Stock Exchange, Inc., the Depositary may, with the approval of the
Company, appoint a Registrar for registry of such Receipts or Depositary Shares
in accordance with the requirements of such Exchange. Such Registrar (which may
be the Depositary if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, such Depositary Shares or
such Preferred Stock are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange such
facilities for the delivery, transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulations.
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. Neither the Depositary nor
any Depositary's Agent nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or future law or
regulation thereunder
20
<PAGE>
of the United States of America or of any other governmental authority or, in
the case of the Depositary or the Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary or the
Depositary's Agent, by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, any Depositary's Agent
or the Company shall be prevented or forbidden from doing or performing any act
or thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company incur
any liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement.
Section 5.3. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any Depositary's Agent nor
the Company assumes any obligation or shall be subject to any liability under
this Deposit Agreement or any Receipt to holders of Receipts other than that
each of them agrees to use good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Preferred Stock, Depositary
Shares or Receipts that in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Preferred Stock for deposit, any holder of a Receipt or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, any Depositary's Agent and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary, its parent, affiliate, or subsidiaries and any
Depositary's Agent may own, buy, sell or deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or otherwise act as fully or
as freely as if it were not the Depositary or the
21
<PAGE>
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary's Agent are acting
only in a ministerial capacity as Depositary for the Preferred Stock; provided,
however, that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
Preferred Stock, the Depositary Shares, the Receipts (except its
counter-signature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness
of the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Preferred Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of the Receipts, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares. The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
Section 5.4. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor
22
<PAGE>
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If a successor Depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the Preferred Stock and any moneys or property
held hereunder to such successor and shall deliver to such successor a list of
the record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
Section 5.5. Corporate Notices and Reports. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are listed or by the Certificate of Incorporation and the Certificate
of Designation to be furnished by the Company to holders of Preferred Stock.
Such transmission will be at the Company's expense and the Company will provide
the Depositary with such number of copies of such documents as the Depositary
may reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
23
<PAGE>
Section 5.6. Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and expenses
(including reasonable attorneys' fees) that may arise out of or in connection
with its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability arising
out of negligence or bad faith on the part of any such person or persons.
Section 5.7. Fees, Charges and Expenses. No fees, charges and
expenses of the Depositary or any Depositary's Agent hereunder or of any
Registrar shall be payable by any person other than the Company, except for any
taxes and other governmental charges and except as provided in this Deposit
Agreement. If the Depositary incurs fees, charges or expenses for which it is
not otherwise liable hereunder at the election of a holder of a Receipt or other
person, such holder or other person will be liable for such fees, charges and
expenses. All other fees, charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case, fees
and expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such fees, charges and
expenses. The Depositary shall present its statement for fees, charges and
expenses to the Company once every three months or at such other intervals as
the Company and the Depositary may agree.
ARTICLE VI.
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable; provided, however, that no such amendment
(other than any change in the fees of any Depositary, registrar or transfer
agent) which (i) shall materially and adversely alter the rights of the holders
of Receipts or (ii) would be materially and adversely inconsistent with the
rights granted to the holders of the Preferred Stock pursuant to the Certificate
of Designation shall be effective unless such amendment shall have been approved
by the holders of at least two-thirds of the Depositary Shares then outstanding.
Any amendment that shall impose any fees, taxes or charges (other than fees and
charges provided for herein or in the Receipts), or that shall otherwise
prejudice any substantial existing right of holders of Receipts, shall not
become effective as to outstanding Receipts until the expiration of 90 days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts. Every holder of
24
<PAGE>
an outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.3, 2.7, 2.8 and 2.11 and Article III, of any owner of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the Preferred Stock and
all money and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law.
Section 6.2. Termination. Whenever so directed by the Company
and approved by the holders of at least a majority of the Depositary Shares then
outstanding, the Depositary will terminate this Deposit Agreement by mailing
notice of such termination to the record holders of all Receipts then
outstanding at least 60 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement if at
any time 60 days shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Preferred Stock, shall sell rights,
preferences or privileges as provided in this Deposit Agreement and shall
continue to deliver the Preferred Stock and any money and other property
represented by Receipts upon surrender thereof by the holders thereof. At any
time after the expiration of two years from the date of termination, the
Depositary may sell Preferred Stock then held hereunder at public or private
sale, at such places and upon such terms as it deems proper and may thereafter
hold the net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for the benefit,
pro rata in accordance with their holdings, of the holders of Receipts that have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement except to
account for such net proceeds and money and other property.
This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.3,
(ii) all outstanding Depositary Shares have been exchanged pursuant to Section
2.4, (iii) each share of Preferred Stock shall have been converted into shares
of Common
25
<PAGE>
Stock pursuant to Section 2.11, or (iv) there shall have been made a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.1
or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement (including
under Section 2.11) except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7.
ARTICLE VII.
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall be
as effective as delivery of a manually executed counterpart of this Deposit
Agreement. Copies of this Deposit Agreement shall be filed with the Depositary
and the Depositary's Agents and shall be open to inspection during business
hours at the Corporate Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
Section 7.2. Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto and their
respective successors hereunder and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4. Notices. Any notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or telex
or telecopier confirmed by letter, addressed to the Company at 3555 Farnam
Street, Omaha, Nebraska 68131, Attention: Senior Vice President,
26
<PAGE>
General Counsel and Secretary, or at any other place to which the Company may
have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary in a timely manner a written request
that notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from time
to time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar
and Transfer Agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
Section 7.6. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York.
27
<PAGE>
Section 7.8. Inspection of Deposit Agreement and Certificate
of Designation. Copies of this Deposit Agreement and the Certificate of
Designation shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
Section 7.9. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
28
<PAGE>
IN WITNESS WHEREOF, Level 3 Communications, Inc. and [Name of Bank]
have duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
LEVEL 3 COMMUNICATIONS, INC.
By:___________________________
Attest: Authorized Officer
[NAME OF BANK]
By:___________________________
Attest: Authorized Signatory
29
<PAGE>
EXHIBIT A/1/
FORM OF
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING ONE ______ OF A SHARE OF
PREFERRED STOCK
($.01 par value per share)
OF
LEVEL 3 COMMUNICATIONS, INC.
(Incorporated under the Laws of the State of Delaware)
____________________________
No. . . . . . . . . . . . . . Depositary Shares (each Depositary
Share represents one [fraction] of a share of
Preferred Stock ($.01 par value per share))
1. [Name of Bank], with an office at the time of the execution of the
Deposit Agreement (as defined below) at ___________________________ (or together
with the corporate office of the Depositary in the Borough of Manhattan, New
York, New York at which its business in respect of matters governed by the
Deposit Agreement is administered at any later time, being at such time, the
"Corporate Office"), as Depositary (the "Depositary"), hereby certifies that
__________________ is the registered owner of Depositary Shares (the "Depositary
Shares"), each Depositary Share representing one [fraction] of a share of
Preferred Stock, $.01 par value per share (the "Preferred Stock"), of Level 3
Communications, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (the "Company") and the same proportionate interest in
any and all other property received by the Depositary in respect of such shares
of Preferred Stock and held by the Depositary under the Deposit Agreement.
Subject to the terms of the Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Stock represented thereby, including the dividend, voting,
conversion, redemption and liquidation rights contained in the Certificate of
Designation adopted by the Board of Directors of the Company or a duly
authorized committee thereof
- ------------------------
/1/ A Form of Depositary Receipt will be prepared for each class or series of
Preferred Stock.
<PAGE>
establishing the rights, preferences, privileges and limitations of the
Preferred Stock (the "Certificate of Designation"), copies of which are on file
at the Corporate Office. The Depositary will furnish without charge to any
registered owner of Depositary Shares who so requests, copies of the Restated
Certificate of Incorporation of the Company, the Deposit Agreement and the
Certificate of Designation.
2. The Deposit Agreement. Depositary Receipts (the "Receipts"), of
which this Receipt is one, are made available upon the terms and conditions set
forth in the Deposit Agreement, dated as of _________, ____ (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office and at the office of any Depositary's Agent) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary. The statements
made on the face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the detailed provisions
thereof, to which reference is hereby made. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings ascribed thereto
in the Deposit Agreement.
3. Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem shares of Preferred Stock for cash, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 45 days' prior written notice of the date of such proposed redemption
of Preferred Stock and of the number of shares of Preferred Stock held by the
Depositary to be redeemed. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the cash redemption price
(determined pursuant to the Certificate of Designation) of the Preferred Stock
deposited with the Depositary to be redeemed, the Depositary shall redeem (using
the proceeds of such redemption) the number of Depositary Shares representing
such redeemed Preferred Stock. The Depositary shall mail notice of the
redemption of Preferred Stock and the proposed simultaneous redemption of
Depositary Shares representing the Preferred Stock to be redeemed, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption as provided in
Paragraph 14 below of the Receipts evidencing Depositary Shares to be redeemed.
In case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by lot or pro rata (as nearly
as may be) or in any other equitable manner determined by the Company. Notice
having been mailed as aforesaid, from and after the cash redemption date (unless
the Company shall have failed to redeem the shares of Preferred Stock to be
redeemed by it on such date), all dividends in respect of the shares of
Preferred Stock called for redemption shall cease to accrue, the Depositary
Shares
A-2
<PAGE>
called for redemption shall be deemed no longer to be outstanding, all rights of
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price) shall, to the extent of such Depositary
Shares, cease and terminate and from and after the last business day preceding
such cash redemption date the conversion rights in respect of such Preferred
Stock shall terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed at the cash redemption price therefor specified in said notice, plus
any other money and other property. The foregoing shall be subject further to
the terms and conditions of the Certificate of Designation. If fewer than all of
the Depositary Shares evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon its surrender to the
Depositary, together with payment of the cash redemption price for the
Depositary Shares called for redemption, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
4. Optional Exchange of Preferred Stock for Common Stock or Exchange
Debt Securities. Whenever the Company shall elect to exchange all of the shares
of Preferred Stock for Common Stock or Exchange Debt Securities, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 45 days' prior written notice of the date of such proposed exchange of
Preferred Stock. On the date of such exchange, provided that the Company shall
then have issued and deposited with the Depositary the Common Stock or Exchange
Debt Securities for the Preferred Stock to be so exchanged, the Depositary shall
exchange the Depositary Shares representing the Preferred Stock for the Common
Stock or Exchange Debt Securities issued in such exchange. The Depositary shall
mail notice of such exchange and the proposed simultaneous exchange of the
Depositary Shares representing the Preferred Stock to be exchanged, not less
than 30 and not more than 60 days prior to the date fixed for exchange for such
Preferred Stock and Depositary Shares (the "exchange date"), to the holders of
record on the record date for such exchange (determined as provided in Paragraph
15 below) of the Depositary Shares to be so exchanged. Notice having been mailed
by the Depositary as aforesaid, from and after the exchange date (unless the
Company shall default in issuing the Common Stock or Exchange Debt Securities in
exchange for, or in making the final dividend payment on, the outstanding shares
of Preferred Stock on the exchange date), all dividends in respect of the shares
of Preferred Stock so called for exchange shall cease to accrue, the conversion
rights in respect thereof will terminate, the Depositary Shares being exchanged
shall be deemed no longer to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to receive the
Common Stock or Exchange Debt Securities) shall, to the extent of such
Depositary Shares, cease and terminate and upon surrender in accordance with
said notice of the Receipt
A-3
<PAGE>
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Company or the Depositary shall so require and the notice shall
so state), such Depositary Shares shall be accepted by the Depositary for such
Common Stock or Exchange Debt Securities at an exchange rate specified in said
notice, plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the exchange date have accrued on the shares of Preferred
Stock to be so exchanged and have not theretofore been paid. The foregoing shall
further be subject to the terms and conditions of the Certificate of
Designation.
5. Surrender of Receipts and Withdrawal of Preferred Stock, Conversion
of Preferred Stock. Upon surrender of this Receipt to the Depositary at the
Corporate Office, or at such other offices as the Depositary may designate, and
subject to the provisions of the Deposit Agreement, the holder hereof is
entitled to withdraw, and to obtain delivery, to or upon the order of such
holder, any or all of the Preferred Stock (including fractional shares of
Preferred Stock) and all money and other property, if any, at the time
represented by the Depositary Shares evidenced by this Receipt; provided, that a
holder of a Receipt or Receipts may not withdraw stock (or money and other
property, if any, represented thereby) which has previously been called for
redemption and exchange. In the event this Receipt shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number (whole or fractional) of shares of Preferred Stock to be withdrawn, the
Depositary shall, in addition to such number (whole or fractional) of shares of
Preferred Stock and such money and other property, if any, to be withdrawn,
deliver, to or upon the order of such holder, a new Receipt or Receipts
evidencing such excess number of whole Depositary Shares, but holders of such
whole shares of Preferred Stock will not thereafter be entitled to deposit such
stock under the Deposit Agreement or to receive Depositary Shares therefor.
It is understood and agreed that the Depositary Shares are not
convertible into the Common Stock or any other securities or property of the
Company. Nevertheless, as a matter of convenience, the Company has agreed in
Section 2.11 of the Deposit Agreement to accept (or cause its conversion agent
to accept) the delivery of Receipts for the purpose of effecting conversions of
the Preferred Stock utilizing the same procedures as those provided for delivery
of Preferred Stock certificates to effect such conversions in accordance with
the terms and conditions of the Certificate of Designation; provided, however,
that only whole Depositary Shares may be so submitted for conversion. If fewer
than all of the Depositary Shares represented by this Receipt are to be
converted, the Company shall instruct the Depositary to issue a new Receipt or
Receipts for the Depositary Shares not to be converted. For this purpose, the
holder of this Receipt may surrender this Receipt to the Company, in care of the
Depositary at the Corporate Office or at
A-4
<PAGE>
such other office as the Company may from time to time designate for such
purpose, together with (i) a duly completed and executed Notice of Conversion in
the form included in this Receipt and (ii) any payment in respect of dividends
as required by Section 2.11 of the Deposit Agreement. In all cases the foregoing
shall be conditioned upon compliance in full by the holder of this Receipt with
the terms and conditions of the Certificate of Designation and of the Deposit
Agreement.
6. Transfers, Split-ups, Combinations. This Receipt is transferable on
the books of the Depositary upon surrender of this Receipt to the Depositary,
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, and upon such transfer the Depositary shall sign and deliver a
Receipt to or upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts or combined
with other Receipts into one Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
7. Conditions to Signing and Delivery, Transfer, etc., of Receipts.
Prior to the execution and delivery, transfer, split-up, combination, surrender
or exchange of this Receipt or the exercise of any conversion right referred to
in Section 2.11 of the Deposit Agreement, the Depositary, any of the
Depositary's Agents or the Company, may require any or all of the following:
(i) payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to it)
of any tax or other governmental charge with respect thereto (including any such
tax or charge with respect to Preferred Stock being deposited or withdrawn
(provided that the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of Common Stock upon conversion; and provided
further that the holder of such Receipt shall pay the amount of any tax which is
due if the shares are to be issued in a name other than the name of such
holder); (ii) proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such regulations, if any, as the Depositary
or the Company may establish consistent with the Deposit Agreement. Any person
presenting Preferred Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper.
8. Suspension of Delivery, Transfer, etc. The deposit of Preferred
Stock, the delivery of this Receipt against Preferred Stock, the transfer,
split-up, combination, surrender or exchange of this Receipt or the exercise of
any conversion right referred to in Section 2.11 of the Deposit Agreement may be
suspended (i) during any period when the register of stockholders
A-5
<PAGE>
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of the
Deposit Agreement.
9. Payment of Taxes or Other Governmental Charges. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt, the Depositary Shares evidenced by this Receipt, the
Preferred Stock (or any fractional interest therein) represented by such
Depositary Shares, the exercise of any conversion right referred to in Section
2.11 of the Deposit Agreement or any transaction referred to in Section 4.6 of
the Deposit Agreement, such tax (including transfer, issuance or acquisition
taxes, if any) or governmental charge shall be payable by the holder hereof
provided that the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of Common Stock upon conversion; and provided
further that the holder of such Receipt shall pay the amount of any tax which is
due if the shares are to be issued in a name other than the name of such holder.
Until such payment is made, transfer of this Receipt or any withdrawal of the
Preferred Stock or money or other property, if any, represented by the
Depositary Shares evidenced by this Receipt may be refused, any dividend or
other distribution may be withheld, such conversion right may be refused and any
part or all of the Preferred Stock or other property represented by the
Depositary Shares evidenced by this Receipt may be sold for the account of the
holder hereof. Any dividend or other distribution or the proceeds of any such
sale may be applied to any payment of such tax or other governmental charge, the
holder of this Receipt remaining liable for any deficiency.
10. Amendment. The form of the Receipts and any provisions of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, registrar or transfer agent) which (i)
shall materially and adversely alter the rights of the holders of Receipts or
(ii) would be materially and adversely inconsistent with the rights granted to
the holders of the Preferred Stock pursuant to the Certificate of Designation
shall be effective unless such amendment shall have been approved by the holders
of at least a majority (or, in the case of amendments relating to or affecting
rights to receive dividends or distributions, or voting, redemption or
conversion rights of the Depositary Shares, Receipts or Preferred Stock, two-
thirds) of the Depositary Shares then outstanding. Any amendment that shall
impose any fees, taxes or charges (other than fees and charges provided for
herein or in the Deposit Agreement) or that shall otherwise prejudice any
substantial existing right of holders of Receipts shall not become effective as
to outstanding Receipts until the expiration of 90 days after notice of such
A-6
<PAGE>
amendment shall have been given to the record holders of outstanding Receipts.
The holder of this Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold this Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right, subject to the provisions of
paragraphs 7 and 8 hereof and of Sections 2.3, 2.7, 2.8 and 2.11 and Article III
of the Deposit Agreement, of the owner of the Depositary Shares evidenced by
this Receipt to surrender this Receipt with instructions to the Depositary to
deliver to the holder the Preferred Stock and all money and other property, if
any, represented thereby, except in order to comply with mandatory provisions of
applicable law.
11. Fees, Charges and Expenses of Depositary. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges, and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Preferred Stock, holders of Receipts or other persons.
12. Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by a properly executed instrument of transfer
or endorsement, is transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that until this Receipt shall be
transferred on the books of the Depositary as provided in Section 2.5 of the
Deposit Agreement, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on the Preferred Stock, including any
cash received upon redemption of any shares of the Preferred Stock, the
Depositary will, subject to the provisions of the Deposit Agreement, make such
distribution to the holders of Receipts as nearly as practicable in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that the amount distributed will be reduced by
any amounts required to be withheld by the Company or the Depositary on account
of taxes, or otherwise required by law, regulation or court order. Other
distributions received on the Preferred Stock may be distributed (subject to
such withholding as may be required on account of taxes or otherwise required by
law, regulation or court order) to such holders of Receipts as provided in the
Deposit Agreement.
A-7
<PAGE>
14. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer to persons in whose name Preferred Stock is registered
on the books of the Company any rights, preferences or privileges to subscribe
for or to purchase any securities or of any other nature, such rights,
preferences or privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to the record
holders of Receipts if the Company so directs in such manner as the Company
shall instruct.
15. Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable, any distribution other than cash shall be
made, or any rights, preferences or privileges shall at any time be offered,
with respect to the Preferred Stock, or whenever the Depositary shall receive
notice of (i) any meeting at which holders of Preferred Stock are entitled to
vote or of which holders of Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any shares of Preferred Stock, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Stock) for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or whose
Depositary Shares are to be so redeemed.
16. Voting Rights. Upon receipt of notice of any meeting at which the
holders of Preferred Stock are entitled to vote, the Depositary shall, as soon
as practicable, mail to the holders of Receipts a notice, which shall contain
(i) such information as is contained in such notice of meeting, (ii) a statement
that the holders of Receipts at the close of business on a specified record date
determined as provided in Paragraph 14 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the Certificate
of Designation, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred Stock represented by the Depositary
Shares evidenced by their respective Receipts, and (iii) a brief statement as to
the manner in which such instructions may be given. Upon the written request of
a holder of a Receipt on such record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted the amount of Preferred Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt.
17. Reports, Inspection of Transfer Books. The Depositary shall make
available for inspection by holders of
A-8
<PAGE>
Receipts at the Corporate Office and at such other places as it may from time to
time deem advisable any reports and communications received from the Company
that are both received by the Depositary as the holder of Preferred Stock and
made generally available to the holders of Preferred Stock by the Company. The
Depositary shall keep books for the registration and transfer of Receipts which
at all reasonable times will be open for inspection by the record holders of
Receipts as provided by applicable law.
18. Liability of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company shall
incur any liability to any holder of any Receipt, if by reason of any provision
of any present or future law or regulation of any governmental authority or, in
the case of the Depositary or the Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary or the
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's Agent
or the Company shall be prevented or forbidden from doing or performing any act
or thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent or the Company incur
any liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of the Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise any discretion provided for in
the Deposit Agreement.
19. Obligations of the Depositary, the Depositary's Agents and the
Company. Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability hereunder or under
the Deposit Agreement to holders of Receipts other than that each of them agrees
to use good faith in the performance of such duties as are specifically set
forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding with respect to Preferred Stock, Depositary Shares or
Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Company will
be liable for any action or failure to act by it in reliance on documents
believed by it to be genuine or upon the advice of or information from legal
counsel, accountants, any person presenting Preferred Stock for deposit,
A-9
<PAGE>
any holder of a Receipt or any other person believed by it in good faith to be
competent to give such advice or information.
20. Termination of Deposit Agreement. Whenever so directed by the
Company and approved by the holders of at least a majority of the Depositary
Shares then outstanding, the Depositary will terminate the Deposit Agreement by
mailing notice of such termination to the record holders of all Receipts then
outstanding at least 60 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement if at
any time 60 days shall have expired after the Depositary shall have delivered to
the Company a notice of its election to resign and a successor depositary shall
not have been appointed and accepted its appointment. Upon the termination of
the Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar with respect to indemnification, charges and expenses.
If any Receipts remain outstanding after the date of termination, the
Depositary thereafter shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as specifically
provided therein.
21. Governing Law. The Deposit Agreement and this Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this Receipt shall
have been executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized signatory and if executed by facsimile signature
of the Depositary, shall have been countersigned manually by such Registrar by
the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED PREFERRED
STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
FOREGOING DESCRIPTION WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. THE DEPOSITARY MAKES
NO WARRANTIES OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY PREFERRED STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY
OF THE RECEIPTS, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS
TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF
THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY SHARES.
A-10
<PAGE>
The Company will furnish to any holder of a Receipt without charge,
upon request addressed to its executive office or the office of its transfer
agent, a full statement of the designation, relative rights, preferences and
limitations of the shares of each authorized class, and of each series of
preferred shares authorized to be issued, so far as the same may have been
fixed, and a statement of the authority of the Board of Directors of the Company
to designate and fix the relative rights, preferences and limitations of other
series.
Dated:
[NAME OF BANK]
By:______________________________
Authorized Signature
A-11
<PAGE>
[FORM OF NOTICE OF CONVERSION INTO COMMON STOCK]
The undersigned holder of this Receipt for Depositary Shares (the
"Depositary Shares") hereby irrevocably exercises the option to convert ______
shares of the Preferred Stock (the "Preferred Stock") represented by the
Depositary Shares evidenced by this Receipt into shares of Common Stock (and any
other applicable securities or property) of Level 3 Communications, Inc. in
accordance with the terms of and conditions of the Preferred Stock as
established in the Certificate of Designation in respect thereof and further as
provided in Section 2.11 of the Deposit Agreement, dated as of ______ __, 199_,
among Level 3 Communications, Inc., _________ as Depositary, and the holders
from time to time of Receipts referred to in such Deposit Agreement, and directs
that the securities deliverable upon such conversion be registered in the name
of and delivered, together with a check in payment for any fractional shares of
Common Stock and any other property deliverable upon such conversion, to the
undersigned unless a different name has been indicated below. If securities are
to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. If the
number of shares of Preferred Stock indicated above is less than the number of
shares of Preferred Stock on deposit with the Depositary in respect of this
Receipt, the undersigned directs that the Company instruct the Depositary to
issue to the undersigned, unless a different name is indicated below, a new
Receipt evidencing Depositary Shares for the balance of the Preferred Stock
(including fractional shares of Preferred Stock) not to be converted.
Dated: Signature:__________________________
NOTE: The signature to this notice of
conversion must correspond with the name as
written upon the face of the Receipt in
every particular, without alteration or
enlargement, or any change whatever.
(Please print name and address of registered holder)
Name___________________________________________________________
Address________________________________________________________
(Please indicate other delivery instructions, if applicable)
Name___________________________________________________________
Address________________________________________________________
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________ the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints __________ his attorney, to transfer the same on the
books of the within-named Depositary, with full power of substitution in the
premises.
Dated: Signature:__________________________
NOTE: The signature to this assignment must
correspond with the name as written upon the
face of the Receipt in every particular,
without alteration or enlargement, or any
change whatever.
Signature Guaranteed:
_________________________
A-13
<PAGE>
EXHIBIT 5
[WILLKIE FARR & GALLAGHER LETTERHEAD]
February 3, 1999
Level 3 Communications, Inc.
3555 Farnam Street
Omaha, Nebraska 68131
Re: Level 3 Communications, Inc.
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for Level 3 Communications, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of $3,500,000,000 aggregate
principal amount of the Company's senior and subordinated debt securities
(collectively, the "Debt Securities"); preferred stock, par value $.01 per share
("Preferred Stock"), and related depositary shares representing fractional
interests in the Preferred Stock ("Depositary Shares"); and common stock, par
value $.01 per share ("Common Stock"). The Debt Securities, Preferred Stock,
Depositary Shares and Common Stock are herein referred to collectively as the
"Securities." The Securities may be issued from time to time by the Company
after the registration statement to which this opinion is an exhibit (the
"Registration Statement") becomes effective. The terms used herein, unless
otherwise defined, have the meanings assigned to them in the Registration
Statement.
We have examined such documents as we have considered necessary for
purposes of this opinion, including (i) the form of indenture (the "Senior
Indenture") between the Company and IBJ Whitehall Bank & Trust Company (formerly
known as IBJ Schroder Bank & Trust Company), as trustee, (ii) the form of
indenture (the "Subordinated Indenture") between the Company and IBJ Whitehall
Bank & Trust Company, as trustee, (iii) the Restated Certificate of
Incorporation and By-Laws of the Company, and (iv) the form of deposit agreement
between the Company and
<PAGE>
Level 3 Communications, Inc.
February 3, 1999
Page 2
a depositary ("Depositary") relating to the Depositary Shares; and such other
documents and matters of law as we have deemed necessary in connection with the
opinions hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to authentic originals of all documents
submitted to us as certified copies or photocopies. In rendering the opinions
expressed below, we have relied on factual representations by Company officials
and statements of fact contained in the documents we have examined.
On the basis of the foregoing and having regard for legal consideration we
deem relevant, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. Upon the taking of appropriate corporate action by the Company; the
effectiveness of the Registration Statement under the Act; the qualification of
the Senior Indenture or the Subordinated Indenture, as the case may be, under
the Trust Indenture Act of 1939; the compliance with the "blue sky" laws of
certain states; the due execution and delivery by the parties thereto of the
Senior Indenture, the Subordinated Indenture, and each amendment of or
supplement to the Senior Indenture or the Subordinated Indenture, as the case
may be (each such Indenture, as so amended or supplemented, being referred to as
an "Indenture," and the trustee under any Indenture being referred to as a
"Trustee"), assuming that the relevant Indenture is consistent with the form
thereof filed as an exhibit to the Registration Statement; the Debt Securities
will be duly and validly authorized and, when the Debt Securities are duly
executed by the Company, authenticated by the relevant Trustee and sold and
delivered at the price and in accordance with the terms set forth in the
Registration Statement, the supplement or supplements to the Prospectus included
therein and the relevant Indenture and the applicable definitive purchase,
underwriting or similar agreement, the Debt Securities will be valid and binding
obligations of the Company, entitled to the benefits of the relevant Indenture,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
<PAGE>
Level 3 Communications, Inc.
February 3, 1999
Page 3
3. Upon the taking of appropriate corporate action by the Company and
its stockholders, including the approval of the terms of any class or series of
Preferred Stock and the authorization of the execution and filing of a
Certificate of Designation (a "Certificate") relating thereto with the Delaware
Secretary of State; the effectiveness of the Registration Statement under the
Act; the compliance with the "blue sky" laws of certain states; the Preferred
Stock will be duly and validly authorized, and, when certificates representing
the shares of Preferred Stock are duly executed by the Company, countersigned,
registered and sold and delivered at the price and in accordance with the terms
set forth in the Registration Statement and the supplement or supplements to the
Prospectus included therein and the applicable definitive purchase, underwriting
or similar agreement, will be validly issued, fully paid and nonassessable.
4. Upon the taking of appropriate corporate action by the Company and
its stockholders; the effectiveness of the Registration Statement under the Act;
the compliance with the "blue sky" laws of certain states; the Common Stock will
be duly and validly authorized, and, when the certificates representing shares
of Common Stock are duly executed by the Company, countersigned, registered and
sold and delivered at the price and in accordance with the terms set forth in
the Registration Statement and the supplement or supplements to the Prospectus
included therein and the applicable definitive purchase, underwriting or similar
agreement, the Common Stock will be validly issued, fully paid and
nonassessable.
5. Upon the taking of appropriate corporate action by the Company and
its stockholders, including the authorization of the execution and filing of a
Certificate relating to the underlying Preferred Stock with the Delaware
Secretary of State; the effectiveness of the Registration Statement under the
Act; the compliance with the "blue sky" laws of certain states; the due
execution and delivery by the parties thereto of a Deposit Agreement relating to
Depositary Shares, and each amendment thereof or supplement thereto (each such
Deposit Agreement, as so amended or supplemented, being referred to as a
"Deposit Agreement"), assuming that the relevant Deposit Agreement is consistent
with the form thereof filed as an exhibit to the Registrations Statement; the
shares of Preferred Stock underlying such Depositary Shares have been deposited
with a bank or trust company (which meets the requirements for the Depositary
set forth in the Registration Statement or in the supplement or supplements to
the Prospectus included therein) under the applicable Deposit Agreement, the
Depositary Shares will be duly and validly authorized, and,
<PAGE>
Level 3 Communications, Inc.
February 3, 1999
Page 4
when the depositary receipts evidencing rights in the Depositary Shares are duly
executed by the relevant Depositary and registered, and the Depositary Shares
are sold and delivered at the price and in accordance with the terms set forth
in the Registration Statement, the supplement or supplements to the Prospectus
included therein and the Deposit Agreement and the applicable definitive
purchase, underwriting or similar agreement, will be validly issued and will
entitle the holders thereof to the rights specified in the Deposit Agreement and
the depositary receipts evidencing rights therein, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/s/ WILLKIE FARR & GALLAGHER
<PAGE>
EXHIBIT 12
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
LEVEL 3 COMMUNICATIONS, INC.
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Fiscal Year Ended
---------------- -----------------------------
1998 1997 1997 1996 1995 1994 1993
------- ------- ----- ----- ---- ---- -----
($ in millions, except for ratios)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (Loss) from Continuing
Operations Before Taxes....... $ (100) $ 66 $ 70 $ 116 $ (4) $(33) $ 241
Interest on Debt, Net of
Capitalized Interest........ 86 11 15 33 52 77 11
Interest Expense Portion of
Rental Expense.............. 5 -- -- 1 -- 1 --
------- ------- ----- ----- ---- ---- -----
Earnings Available for Fixed
Charges....................... $ (9) $ 77 $ 85 $ 150 $ 48 $ 45 $ 252
======= ======= ===== ===== ==== ==== =====
Interest on Debt............... $ 92 $ 11 $ 15 $ 38 $ 72 $ 86 $ 12
MFS Preferred Dividends...... -- -- -- -- 8 -- --
Interest Expense Portion of
Rental Expense.............. 5 -- -- 1 -- 1 --
------- ------- ----- ----- ---- ---- -----
Total Fixed Charges............ $ 97 $ 11 $ 15 $ 39 $ 80 $ 87 $ 12
======= ======= ===== ===== ==== ==== =====
Ratio of Earnings to Fixed
Charges....................... -- 7.29 5.73 3.87 -- -- 20.94
======= ======= ===== ===== ==== ==== =====
Deficiency..................... $ (106) $ -- $ -- $ -- $(32) $(42) $ --
======= ======= ===== ===== ==== ==== =====
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Level 3 Communications, Inc. on Form S-3 of our reports dated March 30,
1998, on our audits of the consolidated financial statements of Level 3
Communications, Inc., formerly Peter Kiewit Sons', Inc., the financial
statements and financial statement schedule of Kiewit Construction & Mining
Group, a business group of Peter Kiewit Sons', Inc., and the financial
statements of Diversified Group, a business group of Peter Kiewit Sons', Inc.
as of December 27, 1997 and December 28, 1996 and for each of the three years
in the period ended December 27, 1997 which reports are included in the 1997
Annual Report on Form 10-K/A of Level 3 Communications, Inc., formerly Peter
Kiewit Sons', Inc. We also consent to the reference to our Firm under the
caption "Experts."
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Omaha, Nebraska
February 3, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Level 3 Communications, Inc. on Form S-3 of our report dated March 13,
1998, except Note 2 as to which the date is May 20, 1998, on our audits of the
consolidated financial statements and financial statement schedules of RCN
Corporation and Subsidiaries as of December 31, 1997 and 1996, and for the
years ended December 31, 1997, 1996 and 1995, which report is incorporated by
reference in the 1997 Annual Report on Form 10-K/A of Level 3 Communications,
Inc., formerly Peter Kiewit Sons', Inc. We also consent to the reference to
our firm under the caption "Experts."
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
Philadelphia, Pennsylvania
February 3, 1999
<PAGE>
EXHIBIT 25.1
----------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
--------
IBJ WHITEHALL BANK & TRUST COMPANY
(formerly known as IBJ SCHRODER BANK & TRUST COMPANY)
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
LEVEL 3 COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 47-0210602
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3555 Farnam Street
Omaha, Nebraska 68131
(Address of principal executive offices) (Zip code)
Senior Debt Securities
--------
(Title of indenture securities)
<PAGE>
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate
trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
None
2
<PAGE>
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been a
default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank & Trust Company as
amended to date. (See Exhibit 1A to Form T-1, Securities and
Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the trustee to Commence
Business (Included in Exhibit 1 above).
*3. A copy of the Authorization of the trustee to exercise corporate
trust powers, as amended to date (See Exhibit 4 to Form T-1,
Securities and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to date
(See Exhibit 4 to Form T-1, Securities and Exchange Commission
File No. 22-19146).
5. Not Applicable
6. The consent of United States institutional trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
3
<PAGE>
NOTE
----
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its directors or
officers, the trustee has relied upon information furnished to it by the
obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answer to said Item is based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items 1, 2
and 16 of this form since to the best knowledge of the trustee as indicated
in Item 13, the obligor is not in default under any indenture under which
the applicant is trustee.
4
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, IBJ Whitehall Bank & Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility & qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 21st day of January, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ LUIS PEREZ
--------------------------------
Luis Perez
Assistant Vice President
<PAGE>
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the issuance by Level 3
Communications, Inc., of its Senior Debt Securities, we hereby consent that
reports of examinations by Federal, State, Territorial, or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ LUIS PEREZ
--------------------------------
Luis Perez
Assistant Vice President
Dated: January 21, 1999
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of September 30, 1998
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
--------------
ASSETS
------
<S> <C> <C> <C>
1. Cash and balance due from depository institutions:
a. Non-interest-bearing balances and currency and coin ...........................................$ 42,702
b. Interest-bearing balances........................................................................$ 13,444
2. Securities:
a. Held-to-maturity securities......................................................................$ 191,921
b. Available-for-sale securities....................................................................$ 118,931
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold and Securities purchased under agreements to resell................................$ 79,838
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income.....................................$ 1,938,005
b. LESS: Allowance for loan and lease losses....................................$ 63,361
c. LESS: Allocated transfer risk reserve........................................$ -0-
d. Loans and leases, net of unearned income, allowance, and reserve.................................$ 1,874,644
5. Trading assets held in trading accounts...............................................................$ 462
6. Premises and fixed assets (including capitalized leases)..............................................$ 1,922
7. Other real estate owned...............................................................................$ 819
8. Investments in unconsolidated subsidiaries and associated companies...................................$ -0-
9. Customers' liability to this bank on acceptances outstanding..........................................$ 371
10. Intangible assets.....................................................................................$ 11,167
11. Other assets..........................................................................................$ 68,097
12. TOTAL ASSETS..........................................................................................$ 2,404,318
</TABLE>
<PAGE>
LIABILITIES
-----------
<TABLE>
<CAPTION>
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices..............................................................................$ 682,904
(1) Noninterest-bearing .........................................................$ 135,253
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . ..........$ 547,651
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs....................................$ 1,154,887
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . ... . . .$ 17,024
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 1,137,863
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase............................$ 91,000
15. a. Demand notes issued to the U.S. Treasury.........................................................$ 12,693
b. Trading Liabilities..............................................................................$ 239
16. Other borrowed money:
a. With a remaining maturity of one year or less....................................................$ 31,002
b. With a remaining maturity of more than one year..................................................$ 1,375
c. With a remaining maturity of more than three years...............................................$ 1,550
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding..............................................$ 371
19. Subordinated notes and debentures.....................................................................$ 100,000
20. Other liabilities.....................................................................................$ 76,658
21. TOTAL LIABILITIES.....................................................................................$ 2,152,679
22. Limited-life preferred stock and related surplus......................................................$ N/A
<CAPTION>
EQUITY CAPITAL
<S> <C> <C> <C>
23. Perpetual preferred stock and related surplus.........................................................$ -0-
24. Common stock..........................................................................................$ 29,649
25. Surplus (exclude all surplus related to preferred stock)..............................................$ 217,008
26. a. Undivided profits and capital reserves...........................................................$ 4,112
b. Net unrealized gains (losses) on available-for-sale securities...................................$ 870
27. Cumulative foreign currency translation adjustments...................................................$ -0-
28. TOTAL EQUITY CAPITAL..................................................................................$ 251,639
29. TOTAL LIABILITIES AND EQUITY CAPITAL..................................................................$ 2,404,318
</TABLE>
<PAGE>
EXHIBIT 25.2
-----------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
--------
IBJ WHITEHALL BANK & TRUST COMPANY
(formerly known as IBJ SCHRODER BANK & TRUST COMPANY)
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
LEVEL 3 COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 47-0210602
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3555 Farnam Street
Omaha, Nebraska 68131
(Address of principal executive offices) (Zip code)
Subordinated Debt Securities
--------------------
(Title of indenture securities)
<PAGE>
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate
trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
None
2
<PAGE>
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been a
default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank & Trust Company as
amended to date. (See Exhibit 1A to Form T-1, Securities and
Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the trustee to Commence
Business (Included in Exhibit 1 above).
*3. A copy of the Authorization of the trustee to exercise corporate
trust powers, as amended to date (See Exhibit 4 to Form T-1,
Securities and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to date
(See Exhibit 4 to Form T-1, Securities and Exchange Commission
File No. 22-19146).
5. Not Applicable
6. The consent of United States institutional trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
3
<PAGE>
NOTE
----
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its directors or
officers, the trustee has relied upon information furnished to it by the
obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answer to said Item is based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items 1, 2
and 16 of this form since to the best knowledge of the trustee as indicated
in Item 13, the obligor is not in default under any indenture under which
the applicant is trustee.
4
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, IBJ Whitehall Bank & Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility & qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 21st day of January, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ LUIS PEREZ
------------------------------
Luis Perez
Assistant Vice President
<PAGE>
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the issuance by Level 3
Communications, Inc., of its Subordinated Debt Securities, we hereby consent
that reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ LUIS PEREZ
------------------------------
Luis Perez
Assistant Vice President
Dated: January 21, 1999
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of September 30, 1998
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
--------------
ASSETS
------
<S> <C> <C> <C>
1. Cash and balance due from depository institutions:
a. Non-interest-bearing balances and currency and coin ...........................................$ 42,702
b. Interest-bearing balances........................................................................$ 13,444
2. Securities:
a. Held-to-maturity securities......................................................................$ 191,921
b. Available-for-sale securities....................................................................$ 118,931
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold and Securities purchased under agreements to resell................................$ 79,838
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income.....................................$ 1,938,005
b. LESS: Allowance for loan and lease losses....................................$ 63,361
c. LESS: Allocated transfer risk reserve........................................$ -0-
d. Loans and leases, net of unearned income, allowance, and reserve.................................$ 1,874,644
5. Trading assets held in trading accounts...............................................................$ 462
6. Premises and fixed assets (including capitalized leases)..............................................$ 1,922
7. Other real estate owned...............................................................................$ 819
8. Investments in unconsolidated subsidiaries and associated companies...................................$ -0-
9. Customers' liability to this bank on acceptances outstanding..........................................$ 371
10. Intangible assets.....................................................................................$ 11,167
11. Other assets..........................................................................................$ 68,097
12. TOTAL ASSETS..........................................................................................$ 2,404,318
</TABLE>
<PAGE>
LIABILITIES
-----------
<TABLE>
<CAPTION>
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices..............................................................................$ 682,904
(1) Noninterest-bearing .........................................................$ 135,253
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . ..........$ 547,651
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs....................................$ 1,154,887
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . ... . . .$ 17,024
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 1,137,863
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase............................$ 91,000
15. a. Demand notes issued to the U.S. Treasury.........................................................$ 12,693
b. Trading Liabilities..............................................................................$ 239
16. Other borrowed money:
a. With a remaining maturity of one year or less....................................................$ 31,002
b. With a remaining maturity of more than one year..................................................$ 1,375
c. With a remaining maturity of more than three years...............................................$ 1,550
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding..............................................$ 371
19. Subordinated notes and debentures.....................................................................$ 100,000
20. Other liabilities.....................................................................................$ 76,658
21. TOTAL LIABILITIES.....................................................................................$ 2,152,679
22. Limited-life preferred stock and related surplus......................................................$ N/A
<CAPTION>
EQUITY CAPITAL
<S> <C> <C> <C>
23. Perpetual preferred stock and related surplus.........................................................$ -0-
24. Common stock..........................................................................................$ 29,649
25. Surplus (exclude all surplus related to preferred stock)..............................................$ 217,008
26. a. Undivided profits and capital reserves...........................................................$ 4,112
b. Net unrealized gains (losses) on available-for-sale securities...................................$ 870
27. Cumulative foreign currency translation adjustments...................................................$ -0-
28. TOTAL EQUITY CAPITAL..................................................................................$ 251,639
29. TOTAL LIABILITIES AND EQUITY CAPITAL..................................................................$ 2,404,318
</TABLE>
