<PAGE> 1
As filed with the Securities and Exchange Commission on March 9, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
SCI SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 63-0583436
-------- -------------
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
2101 West Clinton Avenue
Huntsville, Alabama 35805
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check the
following box [X]
If this form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
<TABLE>
<CAPTION>
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------- ------------------------------
<S> <C>
_____% Convertible Subordinated Notes due 2007 New York Stock Exchange
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The Registrant incorporates by reference herein the description of the
___% Convertible Subordinated Notes due 2007 set forth in the section captioned
"Description of the Notes" in the Prospectus Supplement (to Prospectus dated
February 8, 2000) dated March 3, 2000 which was electronically transmitted for
filing with the Securities and Exchange Commission (the "Commission") as part of
the Registrant's Registration Statement on Form S-3 (No. 333-95297) filed with
the Commission on January 24, 2000.
ITEM 2. EXHIBITS
The following exhibits are filed with the Commission and the New York
Stock Exchange, Inc.:
2.1 Form of the Registrant's ___% Convertible Subordinated Notes
due 2007. (Included in the Supplemental Indenture filed as
Exhibit 2.3.)
2.2 Form of Subordinated Indenture, dated as of March ___, 2000
(the "Subordinated Indenture"), by and between the Registrant
and Bank One Trust Company, National Association, as trustee
(the "Trustee"), relating to the ___% Convertible Subordinated
Notes due 2007.
2.3 Form of Supplemental Indenture No. 1 to the Subordinated
Indenture dated as of March ___, 2000, by and between the
Registrant and the Trustee.
<PAGE> 3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized, on this 6th
day of March, 2000.
SCI SYSTEMS, INC.
By: /s/ Michael M. Sullivan
---------------------------------------
Name: Michael M. Sullivan
Title: Secretary and Corporate Counsel
<PAGE> 1
EXHIBIT 2.2
DRAFT
EXHIBIT 2.2
TO FORM 8-A
SUBORDINATED INDENTURE
=====================================================================
SCI SYSTEMS, INC.,
Issuer
TO
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
Indenture
Dated as of March ___, 2000
---------------
Subordinated Debt Securities
=====================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
SECTION 101. DEFINITIONS.......................................................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................................................14
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................................14
SECTION 104. ACTS OF HOLDERS..................................................................................15
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY............................................................16
SECTION 106. NOTICE TO HOLDERS; WAIVER........................................................................17
SECTION 107. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST................................................18
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.........................................................18
SECTION 109. SUCCESSORS AND ASSIGNS...........................................................................18
SECTION 110. SEPARABILITY CLAUSE..............................................................................18
SECTION 111. BENEFITS OF INDENTURE............................................................................19
SECTION 112. GOVERNING LAW....................................................................................19
SECTION 113. LEGAL HOLIDAYS...................................................................................19
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATES.................................................................19
ARTICLE TWO SECURITY FORMS......................................................................................20
SECTION 201. FORMS GENERALLY..................................................................................20
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION..................................................20
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM...............................................................21
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.........................................................22
ARTICLE THREE THE SECURITIES....................................................................................22
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.............................................................22
SECTION 302. DENOMINATIONS....................................................................................25
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING...................................................26
SECTION 304. BOOK-ENTRY SECURITIES............................................................................28
SECTION 305. TEMPORARY SECURITIES.............................................................................29
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..............................................32
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.................................................35
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED...................................................36
SECTION 309. INTENTIONALLY LEFT BLANK.........................................................................37
SECTION 310. PERSONS DEEMED OWNERS............................................................................38
SECTION 311. CANCELLATION.....................................................................................38
SECTION 312. COMPUTATION OF INTEREST..........................................................................39
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.........................................39
SECTION 314. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.....................................41
SECTION 315. CUSIP NUMBERS....................................................................................42
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................42
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE..........................................................42
SECTION 402. APPLICATION OF TRUST MONEY.......................................................................43
ARTICLE FIVE REMEDIES...........................................................................................44
SECTION 501. EVENTS OF DEFAULT................................................................................44
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...............................................45
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE..................................46
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.................................................................47
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES......................................48
SECTION 506. APPLICATION OF MONEY COLLECTED...................................................................48
</TABLE>
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<TABLE>
<S> <C>
SECTION 507. LIMITATION ON SUITS..............................................................................48
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.....................................................................................49
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES...............................................................49
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE...................................................................49
SECTION 511. DELAY OR OMISSION NOT WAIVER.....................................................................50
SECTION 512. CONTROL BY HOLDERS...............................................................................50
SECTION 513. WAIVER OF PAST DEFAULTS..........................................................................50
SECTION 514. UNDERTAKING FOR COSTS............................................................................51
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.................................................................51
ARTICLE SIX THE TRUSTEE.........................................................................................51
SECTION 601. NOTICE OF DEFAULTS...............................................................................51
SECTION 602. CERTAIN RIGHTS OF TRUSTEE........................................................................52
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...................................53
SECTION 604. MAY HOLD SECURITIES..............................................................................53
SECTION 605. MONEY HELD IN TRUST..............................................................................53
SECTION 606. COMPENSATION AND REIMBURSEMENT...................................................................54
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS...................................54
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................................................55
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................................................56
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS......................................58
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT..............................................................58
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................................................60
ARTICLE SEVEN HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY..................................................60
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.....................................................60
SECTION 702. REPORTS BY TRUSTEE...............................................................................60
SECTION 703. REPORTS BY COMPANY...............................................................................60
ARTICLE EIGHT MERGER, CONSOLIDATION OR SALE OF ASSETS...........................................................61
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.............................................61
SECTION 802. SUCCESSOR SUBSTITUTED............................................................................62
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................62
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...............................................62
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS..................................................63
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.............................................................65
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES................................................................65
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT..............................................................65
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES...............................................65
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES................................................................65
ARTICLE TEN COVENANTS...........................................................................................66
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.............................................66
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.................................................................66
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...............................................68
SECTION 1004. CORPORATE EXISTENCE.............................................................................69
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS...............................................................69
SECTION 1006. OTHER COVENANTS.................................................................................69
SECTION 1007. STATEMENT AS TO COMPLIANCE......................................................................70
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................70
SECTION 1101. APPLICABILITY OF ARTICLE........................................................................70
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................................................70
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...............................................70
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 1104. NOTICE OF REDEMPTION............................................................................71
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.....................................................................72
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE...........................................................73
SECTION 1107. SECURITIES REDEEMED IN PART.....................................................................74
ARTICLE TWELVE SINKING FUNDS....................................................................................74
SECTION 1201. APPLICABILITY OF ARTICLE........................................................................74
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...........................................75
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.......................................................75
ARTICLE THIRTEEN PURCHASE AT OPTION OF HOLDERS...................................................................76
SECTION 1301. APPLICABILITY OF ARTICLE........................................................................76
SECTION 1302. PURCHASE OF SECURITIES..........................................................................76
SECTION 1303. EXERCISE OF OPTION..............................................................................77
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND PAYABLE...................................77
SECTION 1305. SECURITIES PURCHASED IN PART....................................................................78
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE.............................................................78
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE....................................79
SECTION 1402. DEFEASANCE AND DISCHARGE........................................................................79
SECTION 1403. COVENANT DEFEASANCE.............................................................................79
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.................................................80
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS...............................................................82
SECTION 1406. REINSTATEMENT...................................................................................83
ARTICLE FIFTEEN SUBORDINATION OF SECURITIES.....................................................................83
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS..................................................83
SECTION 1502. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC..................................................84
SECTION 1503. NO PAYMENT WHEN CERTAIN SENIOR INDEBTEDNESS IN DEFAULT..........................................85
SECTION 1504. PAYMENT PERMITTED IF NO DEFAULT.................................................................86
SECTION 1505. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.................................................86
SECTION 1506. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.....................................................87
SECTION 1507. TRUSTEE TO EFFECTUATE SUBORDINATION.............................................................87
SECTION 1508. NO WAIVER OF SUBORDINATION PROVISIONS...........................................................87
SECTION 1509. NOTICE TO TRUSTEE...............................................................................88
SECTION 1510. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATION AGENT..................................88
SECTION 1511. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT................................................89
SECTION 1512. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.............................................................................89
SECTION 1513. APPLICABILITY TO PAYING AGENTS..................................................................89
SECTION 1514. DEFEASANCE OF THIS ARTICLE FIFTEEN..............................................................89
SECTION 1515. SUBORDINATION PROVISIONS CONTROLLING............................................................90
SECTION 1516. ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT................................................90
SECTION 1517. TRUSTEE'S COMPENSATION NOT PREJUDICED...........................................................90
ARTICLE SIXTEEN MEETINGS OF HOLDERS OF SECURITIES................................................................90
SECTION 1601. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.......................................................90
SECTION 1602. CALL, NOTICE AND PLACE OF MEETINGS..............................................................91
SECTION 1603. PERSONS ENTITLED TO VOTE AT MEETINGS............................................................91
SECTION 1604. QUORUM; ACTION..................................................................................92
SECTION 1605. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.....................................................................................93
SECTION 1606. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.................................................94
</TABLE>
iii
<PAGE> 5
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C>
Section 310(a)(1)...............................................................................................607
(a)(2)...............................................................................................607
(b)..........................................................................................608(d), 609
Section 311(a)..................................................................................................612
(b)..................................................................................................612
Section 312(c)..................................................................................................701
Section 313.....................................................................................................702
Section 314(a)................................................................................................. 703
(a)(4)..............................................................................................1007
(c)(1)...............................................................................................102
(c)(2)...............................................................................................102
(e)..................................................................................................102
Section 315(b)..................................................................................................601
Section 316(a)(last sentence)...................................................................................101
(a)(1)(A).......................................................................................502, 512
(a)(1)(B)............................................................................................513
(b)..................................................................................................508
(c)...............................................................................................104(e)
Section 317(a)(1)...............................................................................................503
(1)(2)...............................................................................................504
(b).................................................................................................1003
Section 318(a)..................................................................................................107
</TABLE>
iv
<PAGE> 6
INDENTURE, dated as of March _____, 2000, between SCI SYSTEMS, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at 2101 West Clinton Avenue,
Huntsville, Alabama 35805 and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated debt
securities (herein called the "Securities"), to be issued in one or more series
as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of 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 or of series
thereof, 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 words in the singular include words in the plural as
well as the singular and words in the plural include the singular as well as the
plural;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash 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 Trust Indenture Act;
<PAGE> 7
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and except as otherwise herein expressly provided; 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, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Authenticating Agent" means any Person appointed by the Trustee to act
on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, 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. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state or foreign law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Bank" means the banks and other financial institutions that from time
to time are lenders under the Credit Agreement.
"Bearer Security" means any Security except a Registered Security.
"Blockage Notice" has the meaning specified in Section 1503.
"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the secretary or an assistant secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" has the meaning specified in Section 304.
2
<PAGE> 8
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participation rights in or other equivalents
(however designated) of such Person's equity (however designated) whether now
outstanding or issued after the date of this Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, in accordance with GAAP, has been recorded as a
capitalized lease on the balance sheet of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 305.
"Common Stock" means the Company's common stock, $0.10 par value per
share.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its chairman, a vice-chairman, its
president or any vice president and (ii) by its treasurer, an assistant
treasurer, its secretary or an assistant secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated Subsidiaries" means, at any date, any Subsidiary or other
entity, the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"Conversion Agent" means any Person (including the Company acting as
Conversion Agent) authorized by the Company to receive Securities which are
convertible into Common Stock pursuant to Section 301 and which are tendered for
conversion by the Holders thereof and to deliver shares of Common Stock which
such Holders are entitled to receive as a result of the conversion of such
Securities.
3
<PAGE> 9
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office on the date of execution of this
Indenture is located at 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois
60670-0126, Attention: Global Corporate Trust Services, except for purposes of
Section 607, such term shall mean the office or agency of the Trustee in the
Borough of Manhattan, the City of New York, which office at the date hereof is
located at 14 Wall Street, Eighth Floor, New York, New York 10005
"Corporation" includes corporations, associations, partnerships,
limited liability companies, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"covenant defeasance" has the meaning specified in Section 1403 hereof.
"Credit Facility" means the Amended and Restated Credit Agreement dated
as of August 3, 1995, as amended, among the Company, Citibank, N.A., as agent,
ABN AMRO Bank N.V., as co-agent, Bank of America, as co-agent, and the lenders
named therein, as the same may be amended, renewed, extended, refinanced,
substituted or replaced from time to time.
"Credit Facility Agent" means the then acting Agent and Co-Agents, if
any, as defined in and under the Credit Facility or any successor thereto.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Currency Conversion Date" has the meaning specified in Section
313(e).
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions other than as
a result of the European Economic and Monetary Union and the adoption or phase
in of the Euro pursuant thereto, or (ii) any currency unit (or composite
currency) including the Euro for the purposes for which it was established.
"CUSIP" or "Committee on Uniform Security Information Procedures" means
the nine-digit trademark for a system developed by the American Bankers'
Association that uniquely identifies securities trading in the United States.
The first six digits identify the issuer and digits 7-9 identify the issue.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar officer under any Bankruptcy Law.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the then last reported sale price
regular way of the Common Stock
4
<PAGE> 10
as reported on The New York Stock Exchange (the "NYSE"), or if the Common Stock
is not then listed on the NYSE, as reported on such national securities exchange
upon which the Common Stock is listed, or (b) if there is no such reported sale
on the day in question, on the basis of the average of the closing bid and asked
quotations regular way as so reported, or (c) if the Common Stock is not listed
on the NYSE or any national securities exchange, on the basis of the average of
the high bid and low asked quotations regular way on the day in question in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System, or if not so quoted, as reported by the
National Quotation Bureau, Incorporated or a similar organization.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308 hereof.
"defeasance" has the meaning specified in Section 1402 hereof.
"Depository" has the meaning specified in Section 304.
"Designated Senior Indebtedness" means any Senior Indebtedness which,
at the time of determination, has an aggregate principal amount outstanding of,
or commitments to lend up to, at least $50,000,000, and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for the purposes of this
Indenture.
"Dollar" or "$" 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.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 313(f).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 313(e).
"Election Date" has the meaning specified in Section 313(f).
"Euro" means the single currency for those member states of the
European Union that satisfy certain criteria set forth in the Treaty of Rome, as
amended by the Treaty on European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
5
<PAGE> 11
"Exchange Date" has the meaning specified in Section 305.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, 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 Officers' Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate 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), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Chairman, Chief Executive Officer,
a Vice Chairman, the President, a Vice President or the Treasurer of the
Company.
"Foreign Currency" means any Currency other than Currency of the United
States.
"Generally Accepted Accounting Principles" or "GAAP" means Generally
Accepted Accounting Principles in the United States, as in effect from time to
time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries.
"Global Securities" means one or more Securities evidencing all or part
of the Securities to be issued as Book-Entry Securities, issued to the
Depository in accordance with Section 301 and bearing the legend prescribed in
Section 204.
"Government Obligations" means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, securities which are (1)
direct obligations of the United States of America or of the other government or
governments in the confederation which issued the Foreign Currency in which such
series of Securities shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments. In either case, such obligations may not be callable or
redeemable at the option of the issuer or issuers thereof. Such obligations may
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 or other amount with respect to 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 payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
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"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person under (a)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (b) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or the value of foreign
currencies.
"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.
"incorporated provision" has the meaning specified in Section 107.
"Indebtedness" , with respect to any Person means (without
duplication): (a) any liability of such Person (1) for borrowed money, or under
any reimbursement obligation relating to a letter of credit, or (2) evidenced by
a bond, note, debenture or similar instrument, or (3) for payment obligations
arising under any conditional sale or other title retention arrangement
(including a purchase money obligation) given in connection with the acquisition
of any businesses, properties or assets of any kind, or (4) under Capitalized
Lease Obligations, or (5) under Hedging Obligations; (b) any liability of others
of a type described in the preceding clause (a) to the extent that such Person
has guaranteed or is otherwise legally obligated in respect thereof; and (c) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (a) and (b) above.
"Indebtedness" shall not be construed to include (x) trade payables or credit on
open account to trade creditors incurred in the ordinary course of business or
(y) obligations or liabilities incurred in connection with the sale, transfer or
other disposition of property in connection with the securitization or other
asset-based financing thereof; provided however that any such sale, transfer or
other disposition shall be for valid consideration and shall not be to prefer
directly or indirectly any holder of any other obligation or Indebtedness of
such Person as to any such other obligation or Indebtedness that was already
outstanding and did not previously benefit from a Lien.
"Indenture" means this instrument as originally executed (including all
exhibits and schedules hereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into
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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 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 not 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, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Lease" means any capital lease, operating lease, equipment lease, real
property lease or other lease.
"Lien" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. A contractual
grant of a right of set-off does not create a Lien in the absence of an
agreement to maintain a balance against which such right may be exercised.
"mandatory sinking fund payment" shall have the meaning specified in
Section 1201.
"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 Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) 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
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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 another principal
market for the Currency 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 by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided whether at the Stated Maturity, by declaration of acceleration,
notice of redemption, notice of option to elect repayment or otherwise.
"Notice of Default" shall have the meaning specified in Section 601.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Option to Elect Repayment" shall have the meaning specified in Section
1303.
"optional sinking fund payment" shall have the meaning specified in
Section 1201.
"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 canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
purchase, 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
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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 paid pursuant to Section 307 or Securities
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 of any series converted into Capital Stock
of the Company in accordance with the provision of the supplemented indenture
governing such Securities;
provided, however, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, 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 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 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 (iii) 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 actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (or premium, if any) or
interest, if any, on any Securities on behalf of the Company.
"Payment Blockage Period" has the meaning specified in Section 1503.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, 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 307 in exchange for a mutilated
Security or in lieu of a 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, as the case may be.
"Purchase Date" means, when used with respect to any Security to be
purchased at the option of the Holder, the date fixed for such purchase pursuant
to this Indenture.
"Purchase Price" means, when used with respect to any Security to be
purchased at the option of the Holder, the price at which it is to be purchased
pursuant to this Indenture.
"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" means any Security 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.
"Responsible Officer", when used with respect to the Trustee, means any
vice-president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller and any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers or assigned by the
Trustee to administer corporate trust matters at its Corporate Trust Office and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means, at any time, each and every Subsidiary
which is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act and the Exchange Act.
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any 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 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.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Senior Indebtedness" means the principal of, interest on and other
amounts due on Indebtedness of the Company, whether outstanding on the date of
this Indenture or thereafter created, incurred, assumed or guaranteed by the
Company; unless, in the instrument creating or evidencing or pursuant to which
Indebtedness is outstanding, it is expressly provided that such Indebtedness is
not senior in right of payment to the Securities. Senior Indebtedness includes,
with respect to the obligations described above, interest accruing pursuant to
the terms of such Senior Indebtedness on or after the filing of a petition in
bankruptcy or for reorganization relating to the Company, whether or not
post-filing interest is allowed in such proceeding, at the rate specified in the
instrument governing the relevant obligation. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include: (a)
Indebtedness of or amounts owed by the Company for compensation to employees, or
for goods, services or materials purchased in the ordinary course of business;
(b) Indebtedness of the Company to a Subsidiary of the Company except to the
extent any such Indebtedness is pledged to or otherwise subject to a prior claim
by the Banks under the Credit Facility; or (c) any liability for federal, state,
local or other taxes owed or owing by the Company.
"Senior Nonmonetary Default" has the meaning specified in Section 1503.
"Senior Payment Default" has the meaning specified in Section 1503.
"Special Record Date" means a date fixed by the Trustee for the payment
of any Defaulted Interest pursuant to Section 308.
"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 309.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries of the Company.
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"Surviving Entity" shall have the meaning set forth in Section 801
hereof.
"Trading Day" shall mean (A) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business, (B) if the applicable
security is quoted on The Nasdaq National Market, a day on which trades may be
made thereon or (C) if the applicable security is not so listed, admitted for
trading or quoted, 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 execute order to close.
"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, an estate the
income of which is subject to United States Federal income taxation regardless
of its source, or any trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
fiduciaries who have the authority to control all substantial decisions of the
trust.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Valuation Date" has the meaning specified in Section 313(c).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
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"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 (including any covenant compliance with
which constitutes a condition precedent) 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 covenant
or condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition 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 with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
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representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(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 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 (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, 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
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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 principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner that 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, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of such 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), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no 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 Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities then Outstanding shall be computed as of such record date, provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act 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 six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or 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, suffered or omitted to be done by the Trustee, any
Paying 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 the Company shall be sufficient
for every purpose hereunder if made, given, furnished or delivered, in writing,
to or with the Trustee at its Corporate Trust Office, Attention: Global
Corporate Trust Services Division; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or
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delivered, in writing, or mailed, first-class postage prepaid, or delivered by
recognized overnight courier, 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 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. Any notice mailed to a
Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice 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 to Holders of Bearer Securities 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 at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case, 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 Holders 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.
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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. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA Sections 310 to 318,
inclusive, or conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by operation of such TIA
Sections, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. 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 110. 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 111. 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
Authenticating Agent, any Paying Agent, any Securities Registrar, any holders of
Senior Indebtedness and their successors hereunder and the Holders of Securities
or coupons, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
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SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE
SHALL BE SUBJECT TO, AND GOVERNED BY, THE PROVISIONS OF THE TRUST INDENTURE ACT
OF 1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF AND TO GOVERN INDENTURES
QUALIFIED THEREUNDER.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or 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 of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, 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 or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 114. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES,
STOCKHOLDERS OR INCORPORATES.
No director, officer, employee, incorporator or stockholders, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creations. Each Holder by accepting any of
the Securities waives and releases all such liability. Such waiver and release
are part of the consideration for the issuance of the Securities of any series.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
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 by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers
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executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the forms of Securities or coupons of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities 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:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
-------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
____________, 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, 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
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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 Section 305. Subject to the provisions of Section 303
and, if applicable, Section 305, 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 Section 305 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 308, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 310 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.
SECTION 204. FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
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NEW YORK, NEW YORK 10041) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
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 in, 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 (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title and ranking of the Securities of the series (which
shall distinguish the Securities of the 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 305, 306, 307, 906, 1107 or 1305):
(3) the Person to whom any interest on the Securities of any
series is payable if other than the Person in whose name the Securities of such
series are registered on the Regular Record Date;
(4) the date or dates, or the method by which such date or dates
will be determined on which the principal of the Securities of the series is
payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the Regular Record Date, if
any, for
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the interest payable on any Registered Security on any Interest Payment Date, or
the method by which such date or dates shall be determined, and the basis upon
which interest shall be calculated if other than on the basis of a 360-day year
of twelve 30-day months;
(6) 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) and interest, if any, on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable and, if different
than the location specified in Section 106, the place or places where notices or
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within which, the events upon the
occurrence of which, the price or prices at which, and other terms and
conditions upon which Securities of the series may be redeemed or purchased, in
whole or in part, at the option of the Company, if the Company is to have that
option;
(8) 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, the price or prices at 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;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any Securities of
the series shall be issuable;
(10) whether the amount of payments of principal of (or 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, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(11) whether the principal of (or premium, if any) or interest, 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 other than Dollars, 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 in which such Securities are denominated
or stated to be payable and the Currency 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 313;
(12) 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
the method by which such portion shall be determined;
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(13) if the principal amount of the Securities of the series
payable at the Maturity thereof is not determinable as of any date prior to such
Maturity, the amount which shall be deemed to be the Outstanding principal
amount of the Securities of such series;
(14) any change in the applicability 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 that shall
be applicable to the Securities of the series;
(15) 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,
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 306, whether Registered
Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may
be made and if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) any change in the applicability of the Events of Default with
respect to Securities of the series, whether or not such Events of Default are
consistent with the Events of Default set forth herein;
(17) any deletions from, modifications of or additions to the
covenants of the Company with respect to Securities of the series, whether or
not such covenants are consistent with the covenants set forth herein;
(18) if the Securities of the series are to be secured;
(19) whether the Securities of the series are convertible into
Capital Stock of the Company and the specific terms applicable to such
conversion;
(20) the specific terms of the depository arrangement with respect
to any portion of a series of Securities to be represented by a Global Security
pursuant to Section 304; and
(21) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which terms
shall not be inconsistent with the requirements of the Trust Indenture Act or
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
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supplemental hereto. Not all Securities of any one series need be issued at the
same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the 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, the
Securities of such series, other than Securities issued in global form (which
may be of any denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by any one of the following: its Chairman, Chief
Executive Officer, its President or one of its Vice Presidents, and attested by
one of its Vice Presidents or its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities or coupons may be
manual or facsimile.
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 such Company
Order shall authenticate and make available for delivery 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 in the form
set forth in EXHIBIT A-1 to this Indenture, 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 305, 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
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<PAGE> 31
beneficial owner's interest in such permanent Global Security. Except as
permitted by Section 307, the Trustee shall not authenticate and make available
for delivery any Bearer Security unless all appurtenant coupons for interest
then matured have been detached and canceled. If not all the Securities of any
series are 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 terms of particular Securities of such series such as interest
rate, stated maturity, 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 sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture:
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that 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 made available for delivery by the Trustee in accordance with
this Indenture and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and 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;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery
of such Securities and any coupons and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate the terms of the
Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate action
with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or result in
any violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which the
Company is bound.
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Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and make available
for delivery any such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each 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 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 311 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. BOOK-ENTRY SECURITIES.
(a) The Securities of a series may be issuable in whole or in part
in the form of one or more Global Securities ("Book-Entry Securities") deposited
with, or on behalf of, a Depository (the "Depository"). In the case of
Book-Entry Securities, one or more Global Securities will be issued in a
denomination or aggregate denomination equal to the portion of the aggregate
principal amount of Outstanding Securities of the series to be represented by
such Global Security or Global Securities. Unless otherwise provided as
contemplated by Section 301, the additional provisions set forth in this Section
304 shall apply to Book-Entry Securities.
(b) Book-Entry Securities will be deposited with, or on behalf of,
the Depository, and registered in the name of the Depository's nominee, for
credit to the respective accounts of institutions that have accounts with the
Depository or its nominee ("Participants"); provided that Book-Entry Securities
purchased by persons outside the United States may be credited to or through
accounts maintained at the Depository by or on behalf of Euroclear or Cedel. The
accounts to be credited will be designated by the underwriters or agents of such
Securities or, if such Securities are offered and sold directly by the Company,
by the Company. Ownership of
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beneficial interests in Book-Entry Securities will be limited to Persons that
may hold interests through Participants and will be shown on records maintained
by the Depository or its nominee for such Book-Entry Security. Participants
shall have no rights under this Indenture or any indenture supplemental hereto
with respect to any Book-Entry Security held on their behalf by the Depository,
or the Trustee as its custodian, or under the Book-Entry Security, and the
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Book-Entry Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing in this Indenture or
any such indenture supplemental 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 the Depository or
impair, as between the Depository and its Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Transfers of Book-Entry Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in Book-Entry Securities may
be transferred or exchanged for Bearer Securities only if (i) the Depository
advises the Trustee in writing that it is no longer willing or able to discharge
properly its responsibilities with respect to such Book-Entry Security and it is
unable to locate a qualified successor, (ii) the Company, at its option, elects
to terminate the book-entry system by executing and delivering to the Trustee
and the Depository a notice to such effect, or (iii) there shall have occurred
and be continuing a Default or Event of Default with respect to the Securities
represented by such Book-Entry Security.
(d) In connection with any transfer or exchange of a portion of
the beneficial interest in any Book-Entry Security to beneficial owners pursuant
to paragraph (c) above, the Security Registrar shall (if one or more Bearer
Securities are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Book-Entry Security in an amount equal
to the principal amount of the beneficial interest in the Book-Entry Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Bearer Securities of like tenor and
principal amount of authorized denominations.
(e) In connection with the transfer of Book-Entry Securities as an
entirety to beneficial owners pursuant to paragraph (c) above, the Book-Entry
Securities shall be deemed to be surrendered to the Trustee for cancellation and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Book-Entry Securities, an equal aggregate principal
amount of Bearer Securities of like tenor of authorized denominations.
(f) The Holder of any Book-Entry Security may grant proxies and
otherwise authorize any person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under the applicable Indenture or the Securities.
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SECTION 305. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are typewritten, printed, lithographed,
engraved or otherwise produced by any combination of these methods, 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 evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form that are not
issued as Book-Entry Securities as provided in Section 304 (which shall be
exchanged in accordance with the provisions of the following paragraphs), 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 unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a 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.
If temporary Securities of any series are issued in global form (other
than Securities issued as Book-Entry Securities as provided in Section 304), 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 that is not issued as a Book-Entry Security as provided in Section 304
(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
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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 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 that is
not issued as a Book-Entry Security as provided in Section 304, 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 in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or Cedel.
Bearer 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, including temporary Global Securities (whether or not
issued as Book-Entry Securities as provided in Section 304), 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 (other than Securities
issued as Book-Entry Securities as provided in Section 304) 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 form as may be established pursuant to Section 301), for credit without
further interest thereon on or after such Interest Payment Date to the
respective accounts of the 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
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Interest Payment Date occurring prior to such Exchange Date 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). 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 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 premium, if any) or
interest, if any, 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 immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 1003.
SECTION 306. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
such office of the Trustee and in any other office or agency designated pursuant
to Section 1002 being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Trustee is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Except as otherwise described in this Article Three, upon surrender for
registration of transfer of any Registered Security of any series at the office
or agency in a Place of Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series, in each case, of any authorized denominations and of a like aggregate
principal amount.
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
denominations and of a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, 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 or Section 304, Bearer Securities may not be issued
in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to 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,
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Bearer Securities of any series may be exchanged for Registered Securities of
the same series of any authorized denomination 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 shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive, and the Trustee
shall cancel the Bearer Securities so transferred. In the case of an exchange of
Bearer Securities for an interest in a Book-Entry Security, the Security
Registrar shall reflect on the Register the date and an increase in the
principal amount of the Bearer Securities to be transferred, and the Trustee
shall cancel the Bearer Securities so transferred.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security (other than
Securities issued as Book-Entry Securities as provided in Section 304) shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent Global Security is 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
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such interest may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent Global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent Global Security shall be surrendered by the
Common Depositary 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, 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 permanent 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 permanent Global Security
to be exchanged which, unless the Securities of the series are not issuable both
as Bearer Securities and as Registered Securities, as specified as contemplated
by Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; 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
before 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 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 pay all documentary, stamp, similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
305, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 and
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ending at the close of business on (A) if Securities of the series are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series 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 the unredeemed
portion of any Security being redeemed in part, 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 307. 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 together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them and 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 of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated 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 the
surrendered Security, pay such Security or coupon.
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 Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for 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 of like tenor and
principal amount 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 mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section
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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 pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges 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 mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, 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 307 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 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such 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, if any, 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 310, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account located in the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent Global Security (other than Book-Entry Securities issued as provided
in Section 304) will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Cedel with respect to that
portion of such permanent Global Security held for its account by the Common
Depositary, for the purpose of permitting each of Euroclear and Cedel to credit
the interest, if any, received by it in respect of such permanent Global
Security to the accounts of the beneficial owners thereof.
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Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "Defaulted Interest")
may be paid by the Company, at its election in each case, as provided in
Subsection (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, and at the same time the Company shall deposit with the
Trustee an amount of money in the 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 313(b), 313(d) and 313(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
Subsection 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 given in the manner provided in Section
106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose name 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 Subsection (2).
(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.
SECTION 309. Intentionally left blank.
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SECTION 310. 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 Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 306 and 308)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
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 bearer of any Bearer Security and the bearer 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 coupons be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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 311. 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 current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and 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
canceled 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 canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall
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be disposed of by the Trustee in accordance with its customary procedures,
unless by Company Order the Company shall direct that canceled Securities be
returned to it.
SECTION 312. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) 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 any Registered or Bearer Security of such series will be made in Dollars. The
provisions of this Section 313 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 paragraph (d) below, to receive payments of principal of (or premium, if any)
or interest, if any, on such Registered Securities in any of the Currencies
which may be designated for such election by delivering to the Trustee a written
election with signature guaranties 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, 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 (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 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 as provided in Section 313(a). The Trustee 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
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deliver to the Company a written notice specifying, in the Currency 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 the
Registered Securities to be paid on such payment date, and specifying the
amounts in such Currency so payable in respect of the Registered Securities as
to which the Holders of Registered Securities of such series shall have elected
to be paid in another 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 Officers' Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security shall have elected to be paid in a Currency
other than Dollars as provided in paragraph (b) above, and a Currency Conversion
Event occurs with respect to such elected Currency, such Holder shall receive
payment in Dollars.
(e) 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 effective date of the Currency Conversion Event (the
"Currency Conversion Date").
(f) The "Dollar Equivalent of the Currency Unit" shall be
determined as specified pursuant to Section 301. "Election Date" shall mean the
date for any series of Registered Securities as specified pursuant to clause
(11) of Section 301 by which the written election referred to in paragraph (b)
above 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 and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
Except as otherwise provided pursuant to Section 301, in the event that
the Company determines in good faith that a Currency Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Currency Conversion Date.
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Except as otherwise provided pursuant to Section 301, in the event the Company
so determines that a Currency Conversion Event has occurred with respect to any
currency unit in which Securities are payable, the Company will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 106 to the affected Holders) specifying the Currency Conversion Date and
the Specified Amount of each Component Currency on the Currency 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 and
the Exchange Rate Agent.
The Trustee 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 314. 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 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 Dollars into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 313.
(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.
(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 payable in the same Currency).
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SECTION 315. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) in addition to serial numbers, and, if so, the Trustee shall
use such "CUSIP" numbers in addition to serial numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice and that reliance may be placed
only on the serial or other identification numbers printed on the Securities,
and any such notice shall not be affected by any defect in or omission of such
"CUSIP" numbers. The Company will promptly notify the Trustee of any change in
the "CUSIP" numbers.
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 expressly provided for herein or pursuant
hereto) and the Trustee, on demand of 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 306, (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 307, (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 with the Trustee or any Paying Agent 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
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(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 as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if any)
and interest, if any, 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 under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 611 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Subsection (1)
of this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, 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 interest, if any, for whose payment such money has been
deposited with the Trustee. If the Trustee or Paying Agent is unable to apply
any money or Government Obligations in accordance with Section 401 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on the Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of the Securities to
receive such payment from the money or Government Obligations held by the
Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or government body):
(1) default in the payment of any interest on any Security
when it becomes due and payable, and continuance of such default for a period
of 30 days;
(2) default in the payment of the principal of (or premium,
if any, on) any Security when due;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article Twelve;
(4) default in the performance, or breach, of any covenant or
warranty of the Company contained in this Indenture (other than a default in
the performance, or breach, of a covenant or warranty that is specifically
dealt with elsewhere herein), and continuance of such default or breach for a
period of 60 days after written notice has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding;
(5) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an outstanding
principal amount of $50,000,000 or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness exists on the date of this
Indenture or is hereafter created, (a) an event of default that has resulted in
such Indebtedness becoming due and payable prior to its stated maturity and
such Indebtedness shall not have been discharged in full or such acceleration
shall not have been rescinded or annulled and/or (b) the failure to pay when
due principal of or interest on such Indebtedness within the grace period
provided for in such Indebtedness (which failure continues beyond any
applicable grace period);
(6) failure by the Company or any of its Restricted
Subsidiaries to pay, bond or otherwise discharge within 60 days one or more
final judgments or court orders for the payment of money the uninsured portion
of which exceeds $50,000,000 in the aggregate, which judgments or court orders
are not stayed on appeal or are not otherwise being appropriately contested in
good faith;
(7) a court having jurisdiction in the premises enters a
decree or order for (i) relief in respect of the Company or any Restricted
Subsidiary in an involuntary case under any applicable Bankruptcy Law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Restricted
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Subsidiary or for all or substantially all of the property and assets of the
Company or any Restricted Subsidiary or (iii) the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(8) the Company or any Restricted Subsidiary (i) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case under
any such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any Restricted
Subsidiary or (iii) effects any general assignment for the benefit of
creditors.
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Section 501(7) or
(8)) occurs and is continuing, the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any series then outstanding
may, and the Trustee at the request of such Holders shall, declare the
principal of all of the outstanding Securities of such series immediately due
and payable, by a notice in writing to the Company (and to the Trustee if given
by the Holders) and, upon any such declaration, such principal shall become due
and payable immediately. If an Event of Default specified in Section 501(7) or
(8) above occurs and is continuing, then such principal shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder of Securities.
At any time after a declaration of acceleration under this Indenture
of the Securities of any series, but before a judgment or decree for payment of
the money due has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind such declaration and
its consequences with respect to such series if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of such
series,
(B) all unpaid principal of (and premium, if any,
on) any outstanding Securities of such series that has become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities of such
series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue principal
amount at the rate borne by the Securities of such series,
and
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(D) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the Securities
of such series that have become due solely by such declaration of acceleration,
have been cured or waived.
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:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Stated Maturity or other maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the 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 and all other
amounts due to the Trustee under Section 606.
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 the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce 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
subject, however, to Section 513.
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No recovery of any such judgment upon any property of the Company shall affect
or impair any rights, powers or remedies of the Trustee or the Holders.
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, upon the Securities or the
property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, 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 of
principal (and premium, if any) and interest owing and unpaid in respect of the
Securities, to take such other actions (including participating as a member,
voting or otherwise, of any official committee of creditors appointed in such
matter) 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 in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 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 any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of such Holders, vote for the election of a
trustee in bankruptcy or other similar official.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements
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and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company or any other obligor on the Securities, as their
interests may appear or as a court of competent jurisdiction may direct,
provided that all sums due and owing to the Holders and the Trustee have been
paid in full as required by this Indenture.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons 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 30 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 30-day period by the Holders of a majority or more
in principal amount of the Outstanding Securities of that series;
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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
Holders of Securities of the same series 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 Holders of Securities of the same series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest, if any, on, such Security or payment of such coupon on
the respective Stated Maturities 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 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 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 in Section 307, 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, as the case may be.
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SECTION 512. CONTROL BY HOLDERS.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
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, provided that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability;
(2) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting;
and
(3) subject to the provisions of the TIA Section 315, the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past Default or
Event of Default under this Indenture, except a default in the payment of the
principal of (and premium, if any) or interest on any Note, or in respect of a
covenant or provision that under this Indenture cannot be modified or amended
without the consent of the Holder of each Note outstanding.
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. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of Securities of
any series by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on Securities of any series on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption
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Date); provided that neither this Section 514 nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs with respect to the
Securities of any series and is continuing and is known to the Trustee, the
Trustee shall mail to all Holders of the Securities notice of the Default or
Event of Default within 90 days after the occurrence thereof. Except in the
case of a Default or an Event of Default in payment of principal of (and
premium, if any, on) or interest on any Securities, the Trustee may withhold
the notice to the Holders if a committee of its trust officers in good faith
determines that withholding such notice is in the interests of the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 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, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(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, request and rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel of its selection and any
written 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 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, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company;
(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 reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and the Trustee shall not be deemed to have notice of any Default or Event of
Default, except in the case of an event of default involving failures by the
Company to pay principal, premium, if any, or interest on the Securities,
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Company, the Securities or this Indenture.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except for 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. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements to be made by it in a Statement of Eligibility on Form
T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth
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therein. 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 Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, 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,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. The
Trustee is permitted to engage in other transactions; provided, however, that
if it acquires any conflicting interest it must eliminate such conflict or
resign.
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 such compensation as shall
be agreed to in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and costs and expenses of collection),
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 or any predecessor Trustee (and
their respective directors, officers, employees and agents) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense,
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, 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.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee. As
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security for the performance of such obligations of the Company, the Trustee
shall have a claim 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 (and premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or (8), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and which shall have an
office in The City of New York, and shall have a combined capital and surplus
of at least $50,000,000. If the Trustee does not have an office in The City of
New York, the Trustee may appoint an agent in The City of New York reasonably
acceptable to the Company to conduct any activities which the Trustee may be
required under this Indenture to conduct in The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 607,
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 607, 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 under 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 the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days
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after the giving of such notice of removal, the removed Trustee may, at the
expense of the Company, petition a court of competent jurisdiction for the
appointment of a successor Trustee.
(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 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 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 a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
the Holder of any 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 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 in accordance with Section 609, 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 within 30
days of resignation or removal of the Trustee, no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
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(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
to the Holders of Securities of such series in the manner provided for 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) Every successor Trustee appointed hereunder 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; provided, however,
that the retiring Trustee shall continue to be entitled to the benefit of
Section 606; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other 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. Whenever there is a successor
Trustee with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms
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"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 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 shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In case any of the Securities shall not have been authenticated by such
predecessor Trustee, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
Trustee. In all such cases such certificates shall have the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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 and the Trustee shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 106. 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, and a copy of such 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
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Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for 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. 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 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 the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated:
----------------------
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------------,
as Trustee
By:
-----------------------------------
as Authenticating Agent
By:
-----------------------------------
Authorized Signatory
SECTION 612. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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 none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any information as to the names and addresses of the Holders
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 to the Holders of Securities, in the manner and to the
extent provided 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 shall:
(1) file with the Trustee, within 30 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
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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 Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof with
the Trustee, 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 Subsections (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, sell, assign, transfer, lease or otherwise
convey all or substantially all of its properties and assets substantially as
an entirety to any Person or Persons, unless:
(a) either (i) the Company is the surviving corporation or (ii) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person that acquires by sale, assignment,
transfer, lease or other disposition the properties and assets of the Company
substantially as an entirety (the "Surviving Entity") (A) is a corporation,
partnership or trust organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and (B) expressly
assumes, by a supplemental indenture in form satisfactory to the Trustee, all
of the Company's obligations under this Indenture and the Securities;
(b) the sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the properties or assets of the
Company shall be as an entirety or virtually as an entirety to one Person and
such Person assumes all obligations of the Company under this Indenture and the
Securities, pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee;
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(c) immediately after giving effect to such transaction, and after
giving effect thereto, no Default or Event of Default shall have occurred and
be continuing; and
(d) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
SECTION 802. SUCCESSOR SUBSTITUTED.
In the event of any transaction described in and complying with the
conditions listed in Section 801 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the Company shall, except in the case of a
lease, be discharged from all its obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, 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; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are being included solely for the benefit of such
series) or to surrender any right or power herein or in the Securities
conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the benefit
of such series); 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
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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, if the Company so elects; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
609(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(10) 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; provided that such action shall not adversely affect the
interests of the Holders of Securities of any series and any related coupons in
any material respect; or
(11) 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 1401, 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;
(12) to make any other change that does not adversely affect the
rights of any Holder; or
(13) to comply with any requirement of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act.
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 of any series, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into one or more indentures
supplemental hereto for the purpose of adding any provisions to or
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changing in any manner or eliminating any of the provisions of this Indenture
which affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture amendment or waiver shall, without
the consent of the Holder of each Outstanding Security of such series affected
thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or reduce
the principal amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or reduce the amount of the principal of an Original Issue
Discount Security of such series 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 any Holder of any Security of
such series, or change any Place of Payment where, or the Currency in which,
any Security of such series or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or
Repayment Date, as the case may be), or adversely affect any right to convert
or exchange any Security as may be provided pursuant to Section 301 herein; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture which affect
such series or certain defaults applicable to such series hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for a quorum or voting with respect to Securities of such series;
or
(3) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner materially adverse to the Holders;
or
(4) modify any of the provisions of this Section 902 or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture which affect such series cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby of such series.
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. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
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.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d) and Section 602
hereof) 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 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.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable 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 City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, 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 Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
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; provided, however, that, if the Securities of that
series are listed on any 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 any required city located outside the
United States 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, where Securities of that series that are convertible and
exchangeable may be surrendered for conversion or exchange, as applicable and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served.
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The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of any series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, and the Company hereby appoints the same
as its agents to receive such respective 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 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 premium, if any) and interest, if any, on any Bearer Security shall be
made at the office of the Company's Paying Agent in The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium
or interest, as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; 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 as contemplated by 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 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 may be payable in a
Currency other than Dollars, 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.
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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 Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on 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 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 313(b), 313(d) and 313(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series 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, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) and interest, if any, on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal of (or premium, if any) or interest, if any, on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years after such principal, premium or interest has
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become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security or coupon shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Restricted Subsidiary and the corporate rights
(charter and statutory), licenses and franchises of the Company and each
Restricted Subsidiary; provided, however, that the Company shall not be
required to preserve any such existence (except of the Company), right, license
or franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Restricted Subsidiaries, taken as a whole.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment or charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1006. OTHER COVENANTS.
The applicable prospectus supplement will describe any material
covenants in respect of a series of Securities.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year ending after the date hereof, a brief certificate of its
principal executive officer, principal financial officer or principal
accounting officer stating whether, to such officer's knowledge, the Company is
in compliance with all covenants and conditions to be complied with by it under
this Indenture. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
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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 the terms of such Securities
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, 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 and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. 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 of the principal of Securities of such series; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any 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.
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SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed.
All notices of redemption shall identify the Securities (including
CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) 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, if any, to the Redemption Date payable as provided in Section 1106
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will 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,
(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 Redemption Date 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 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 such Redemption Date pursuant to Section 306 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made; and
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(10) if applicable, the conversion price, the date on which the right
to convert the principal of the Securities or the portions thereof to be
redeemed will terminate and the place or places where such Securities may be
surrendered for conversion.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
The Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) on or prior to the Redemption Date an amount of
money in the 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 313(b), 313(d)
and 313(e)) sufficient to pay the Redemption Price of, and accrued interest, if
any, on, all the Securities 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 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 313(b), 313(d) and 313(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, if any)
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 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
308.
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
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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 of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any 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 such Holder's
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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any 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.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same
series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided, however, that such Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the 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 313(b), 313(d) and 313(e)) and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 1202 (which Securities will, if not previously
delivered, accompany such certificate) and whether the Company intends to
exercise its right to make a permitted optional sinking fund payment with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 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.
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On or prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with
any unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the
next succeeding sinking fund payment date or, at the written request of the
Company, shall be applied at any time or from time to time to the purchase of
Securities of such series, by public or private purchase, in the open market or
otherwise, at a purchase price for such Securities (excluding accrued interest
and brokerage commissions, for which the Trustee or any Paying Agent will be
promptly reimbursed by the Company) not in excess of the principal amount
thereof.
ARTICLE THIRTEEN
PURCHASE AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Purchase by the Company 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 as
contemplated by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1302. PURCHASE OF SECURITIES.
Securities of any series subject to purchase in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be purchased at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Purchase Date
specified in or pursuant to the terms of such Securities. . The Company
covenants that it shall give notice to the Trustee of any Purchase Date on any
of the Securities not prior to 90 days and prior to 60 days preceding such
Purchase Date, and upon receipt of such notice the Trustee shall notify the
Depository of such Purchase Date pursuant to the requirements of the Letter of
Representations. The Company covenants that on or before the Purchase 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 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
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Sections 313(b), 313(d) and 313(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 Purchase Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Securities or portions thereof, as
the case may be, to be purchased on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to purchase at the option of the
Holders thereof will contain an "Option to Elect Purchase" form on the reverse
of such Securities. To be purchased at the option of the Holder, any Security
so providing for such purchase, with the "Option to Elect Purchase" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company 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 45 days nor later than 30 days
prior to the Purchase Date. If less than the entire principal amount of such
Security is to be purchased in accordance with the terms of such Security, the
principal amount of such Security to be purchased, 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
purchased, must be specified. The principal amount of any Security providing
for purchase at the option of the Holder thereof may not be purchased in part
if, following such purchase, 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 purchased is a part. Except as otherwise may be
provided by the terms of any Security providing for purchase at the option of
the Holder thereof, exercise of the purchase option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR PURCHASE BECOME DUE AND PAYABLE.
If Securities of any series providing for purchase 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 purchased shall become due and
payable and shall be paid by the Company on the Purchase Date therein
specified, and on and after such Purchase Date (unless the Company shall
default in the payment of such Securities on such Purchase 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 purchase in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Purchase
Date, the principal amount of such Security so to be purchased shall be paid by
the Company, together with accrued interest, if any, to the Purchase Date;
provided however, that coupons whose Stated Maturity is on or prior to the
Purchase 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
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prior to the Purchase 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 308.
If any Bearer Security surrendered for purchase shall not be
accompanied by all appurtenant coupons maturing after the Purchase 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 amid 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 purchase shall
not be so purchased upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Purchase Date) shall, until
paid, bear interest from the Purchase 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 PURCHASED IN PART.
Upon surrender of any Registered Security which is to be purchased 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 purchased.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply
to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402, or
covenant defeasance of or within a series under Section 1403 in accordance with
the terms of such Securities and in accordance with this Article.
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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 related coupons 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 related coupons, 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 (A) and (B) below, and to have satisfied all its
other obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons 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 related coupons 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 related coupons when such payments
are due, (B) the Company's obligations with respect to such Securities under
Sections 305, 306, 307, 1002 and 1003, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject
to compliance with this Article Fourteen, the Company may exercise its option
under this Section 1402 notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403 with respect to any Securities of or within a
series, the Company shall be released from its obligations under any covenant
under Article Eight and in Sections 1004 through 1006, and, if specified
pursuant to Section 301, its obligations under any other covenant, with respect
to such Outstanding Securities and any related coupons on and after the date
the conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any related coupons 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 such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder (it being understood that such
Securities shall not be deemed Outstanding for financial accounting purposes).
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any related coupons, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
reference in any such 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 Section 501(9) or otherwise, as the case may
be, but, except as specified in this Section, the remainder of this Indenture
and such Securities and any related coupons shall be unaffected thereby. In
addition, upon the Company's exercise under Section
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1401 of the option applicable to Section 1403, Sections 501(5) and 501(6) shall
not constitute Events of Default.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and
any related coupons:
(1) 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 related
coupons, (A) money (in Dollars or in the Foreign Currency in which the
applicable series of Securities is payable) in an amount, or (B) Government
Obligations applicable to such Securities 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, under such Securities
and any related coupons, money (in Dollars or in the Foreign Currency in which
the applicable series of Securities is payable) in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay 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 related coupons on the Stated Maturity (or Redemption Date,
if applicable) of such principal (and premium, if any) or installment of
interest, if any, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any related coupons 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 related coupons; provided that
the Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments with respect to such
Securities and any related coupons. Before such a deposit, the Company may give
to the Trustee, in accordance with Section 1102 hereof, a notice of its
election to redeem all or any portion of such Outstanding Securities at a
future date in accordance with the terms of the Securities of such series and
Article Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or
any related coupons shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (7) and (8) of Section 501 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).
(3) No event or condition shall exist that would prevent the Company
from making payments of the principal of (and premium, if any) or interest on
the Securities on the date of such deposit or at any time during the period
ending on the 91st day after the date of such deposit
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(it being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(4) 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 or cause the Trustee or the trust so created to be subject to
the Investment Company Act of 1940, as amended.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) 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 related coupons 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.
(6) 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 related coupons 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.
(7) In the case of an election under either Section 1402 or 1403, the
Company shall represent to the Trustee that the deposit made by the Company
pursuant to its election under Section 1402 or 1403 was not made by the Company
with the intent of preferring the Holders of Securities of any series over
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
(8) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with.
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,
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collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of such Outstanding Securities and any related coupons
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any related 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 Holders of
such Securities and any related coupons of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, 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(1) 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 313(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Currency Conversion Event occurs as contemplated in Section 313(d) or 313(e) or
by the terms of any Security in respect of which the deposit pursuant to
Section 1404(1) has been made, the indebtedness represented by such Security
and any related coupons 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 they become 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 in which such Security becomes payable as a
result of such election or Currency Conversion Event based on the applicable
Market Exchange Rate for such Currency in effect on the third Business Day
prior to each payment date, except, with respect to a Currency Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Currency 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 related
coupons.
Anything in this Article Fourteen 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 an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated
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as though no deposit had occurred pursuant to Section 1402 or 1403, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 1405; provided, however, that if the
Company makes any payment of principal of (or premium, if any) or interest, if
any, on any such Security or any related coupon following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities and any related coupons to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
Except as otherwise specified as contemplated by Section 301, the
following provisions shall apply to Securities of each series.
The Company covenants and agrees, and each Holder of a Security of any
series or of any coupon appertaining thereto, by his acceptance of Securities
of any series, likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article Fifteen, the indebtedness
represented by the Securities of such series and the payment of the principal
of (and premium, if any) and interest on each and all of the Securities of such
series (but not amounts owing to the Trustee by the Company pursuant to Section
606 hereof) are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
This Article Fifteen shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and they and/or each of them may enforce such provisions.
SECTION 1502. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of any payment or distribution of assets of the Company
for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency or similar proceedings of the Company (each such event herein
sometimes referred to as a "Proceeding"), then except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety, upon the terms and conditions described in
Article Eight, the holders of Senior Indebtedness shall first be entitled to
receive payment in full, in cash or cash equivalents, of all amounts due or to
become due on or in respect of such Senior Indebtedness before the Holders of
any Security of such series or of any coupon appertaining thereto are entitled
to receive any payment of principal of , and premium, if any, or interest on
the Securities or on account of the purchase or redemption or other acquisition
of Securities by the Company ("Securities Payment"), and the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
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property or securities which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section 1502, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all the Senior Indebtedness is
paid in full, then such payment or distribution, except for amounts subject to
the claim granted to the Trustee in Section 606 hereof, shall be held in trust
for the holders of Senior Indebtedness and shall be paid over or delivered
forthwith to the trustee in bankruptcy or other Person making payment or
distribution of assets of the Company for application to the payment of all the
Senior Indebtedness remaining unpaid, to the extent necessary to pay all the
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of the Senior Indebtedness.
For purposes of this Article Fifteen only, the words "any payment or
distribution of any kind or character" and "cash, property or securities" shall
not be deemed to include a payment or distribution of equity or subordinated
securities of the Company provided for by a plan of reorganization or
readjustment or of any other corporation provided for by such plan of
reorganization or readjustment that, in the case of subordinated securities,
are subordinated in right of payment to all then outstanding Senior
Indebtedness to at least the same extent as the Securities, as the case may be,
are so subordinated as provided in this Article Fifteen.
SECTION 1503. NO PAYMENT WHEN CERTAIN SENIOR INDEBTEDNESS IN DEFAULT.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made
unless and until such Senior Payment Default shall have been cured or waived or
shall have ceased to exist or all amounts then due and payable in respect of
the Senior Indebtedness or other obligations that are the subject of such
Senior Payment Default shall have been paid in full. For purposes hereof, a
"Senior Payment Default" shall be deemed to have occurred if (1) the principal
of (or premium, if any), or interest or other amounts on, Senior Indebtedness
is not paid when due and any applicable grace period with respect to such
default has ended and such default has not been cured or waived or ceased to
exist, or (2) the maturity of any Senior Indebtedness has been accelerated
because of a default.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company
and the Trustee of written notice of such Senior Nonmonetary Default from an
authorized Person on behalf of any holder of Designated Senior Indebtedness, no
Securities Payment shall be made during the period (the "Payment Blockage
Period") commencing on the date of receipt of such written notice (the
"Blockage Notice") and ending on the earliest of (i) the 180th day after the
date of such receipt of the Blockage Notice, (ii) the date, if any, on which
the Designated Senior Indebtedness to which such default relates is discharged
or such default is waived or otherwise cured and (iii) the date, if any, on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from the Person who gave the Blockage Notice. Not
more than one Blockage Notice may be given in any consecutive 365-day period,
irrespective of the number of
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Senior Nonmonetary Defaults which occur during such period. No Senior
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness initiating such Payment Blockage Period shall be, or be made, the
basis for the commencement of a subsequent Payment Blockage Period unless such
Senior Nonmonetary Default shall have been cured or waived for a period of not
less than 90 consecutive days. For purposes hereof, "Senior Nonmonetary
Default" means the occurrence or existence of any event, circumstance,
condition or state of facts that, by the terms of any instrument pursuant to
which any Designated Senior Indebtedness is outstanding, permits one or more
holders of such Designated Senior Indebtedness (or a trustee or agent on behalf
of the holders thereof) to declare such Designated Senior Indebtedness due and
payable prior to the date on which it would otherwise become due and payable,
other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section 1503, then except for the amounts subject to the
claim granted to the Trustee in Section 606, such payment shall be held in
trust for the holders of Senior Indebtedness and shall be paid over and
delivered forthwith to the holders of Senior Indebtedness remaining unpaid, to
the extent necessary to pay in full all the Senior Indebtedness.
SECTION 1504. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture or in any of the Securities shall, at any time except during the
pendency of any Proceeding referred to in Section 1502 or under the conditions
described in Section 1503, prevent (a) the Company from making Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such payment by the
Holders.
SECTION 1505. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Fifteen, and no payments over pursuant to the
provisions of this Article Fifteen to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness. Neither the Holders of the Securities nor
the Trustee shall have any claim against the holders of the Senior Indebtedness
or the Credit Facility Agent for any impairment of the subrogation rights
herein granted arising out of any release of Liens securing the Senior
Indebtedness.
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SECTION 1506. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article Fifteen are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article Fifteen or elsewhere in this Indenture or in the Securities is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article Fifteen of the holders of Senior Indebtedness, is intended
to rank equally with all other general obligations of the Company) to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Indebtedness; or (c) 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 Fifteen of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holders. The holders of the Senior Indebtedness shall be
entitled to enforce the provisions of this Article Fifteen against the Company,
the Holders of the Securities and the Trustee.
SECTION 1507. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1508. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such Holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness, as the case may be, may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Trustee or
the Holders of the Securities and without impairing or releasing the
subordination provided in this Article Fifteen or the obligations hereunder of
the Holders of the Securities to the holders of Senior Indebtedness, as the
case may be, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, as the case may be, or otherwise amend or supplement in any
manner Senior Indebtedness, as the case may be, or any instrument evidencing
the same or any agreement under which Senior Indebtedness, as the case may be,
is outstanding; (ii) sell,
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exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 1509. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities and of any subsequent cure or
waiver thereof. Notwithstanding the provisions of this Article Fifteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
the Trust Indenture Act, shall be entitled in all respects to assume that no
such facts exist.
Subject to the provisions of the Trust Indenture Act, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness, as the case may
be, to participate in any payment or distribution pursuant to this Article
Fifteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness,
as the case may be, held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Fifteen, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1510. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATION AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee, subject to the provisions of the Trust
Indenture Act, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in a
Proceeding, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of 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 or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Fifteen.
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SECTION 1511. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
Except to the extent of its obligations under the penultimate
paragraph of Section 1502 and the last paragraph of Section 1503, the Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article
Fifteen or otherwise. The Trustee's duties with respect to holders of Senior
Indebtedness are limited to those specifically set forth in this Indenture, and
no implied covenants or obligations shall be construed by any provision hereof.
SECTION 1512. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fifteen shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 606.
SECTION 1513. APPLICABILITY TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Fifteen shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article Fifteen in addition to or in place of
the Trustee; provided, however, that this Section 1513 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 1514. DEFEASANCE OF THIS ARTICLE FIFTEEN.
The subordination of the Securities provided by this Article Fifteen
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Twelve hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Fifteen.
SECTION 1515. SUBORDINATION PROVISIONS CONTROLLING.
Notwithstanding anything to the contrary contained in this Indenture,
to the extent that any provision in this Indenture (other than those contained
in Section 101) conflicts with any provision contained in Article Fifteen
(including the definitions of certain terms used in Article
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Fifteen) of this Indenture, the provisions contained in Article Fifteen of this
Indenture shall govern and control.
SECTION 1516. ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default under Section
501. Nothing contained in this Article Fifteen shall limit the right of the
Trustee or the Holders of Securities of such series and the coupons, if any,
appertaining thereto, to take any action to accelerate the maturity of the
Securities pursuant to Section 502 or to pursue any rights or remedies
hereunder; PROVIDED that all Senior Indebtedness then or thereafter due or
declared to be due shall first be paid in full before such Holders or the
Trustee are entitled to receive any payment from the Company of principal of,
or interest on, the Securities.
SECTION 1517. TRUSTEE'S COMPENSATION NOT PREJUDICED.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to Section 606.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such 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 1602. 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 1601, to be held
at such time and at such place in 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 for 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
1601, 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
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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 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 paragraph (a) of this Section.
SECTION 1603. 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
Person 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 1604. 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 of 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 1602(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.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum the Persons entitled to vote 25% in principal amount of
the Outstanding Securities at the time shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting.
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 not less than a majority in principal amount of the Outstanding Securities
of such series; provided however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice,
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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 not less than such specified percentage in principal amount of the
Outstanding Securities of such 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 1704, 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 1605. 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 1602(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
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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 Outstanding
Securities of such series held or represented by him (determined as specified
in the definition of "Outstanding" in Section 101); 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 1606. 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 facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1602 and, if
applicable, Section 1604. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
SCI SYSTEMS, INC.
By:
-----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, As Trustee
By:
-----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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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 the income of which is
subject to United States federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States fiduciaries who
have the authority to control all substantial decisions of the trust ("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 the United States 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
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise SCI Systems, 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 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.
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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 SIGNATORY)
Name:
---------------------------------------
Title:
--------------------------------------
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL 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 the income of which is
subject to United States Federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States fiduciaries who
have the authority to control all substantial decisions of the trust ("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 SCI
Systems, 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 (ii) 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 District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
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
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<PAGE> 99
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 collection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced r 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]
[SIGNATURE]
By:
-----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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<PAGE> 1
EXHIBIT 2.3
DRAFT
EXHBIT 2.3
TO FORM 8-A
- -------------------------------------------------------------------------------
SCI SYSTEMS, INC.
__ % Convertible Subordinated Notes Due 2007
-----------------------------------------------------
SUPPLEMENTAL INDENTURE NO. 1
TO THE SUBORDINATED INDENTURE DATED AS OF THE DATE HEREOF AND
BETWEEN THE PARTIES HERETO
Dated as of March __, 2000
-----------------------------------------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
- -------------------------------------------------------------------------------
<PAGE> 2
SCI SYSTEMS, INC.
__ % CONVERTIBLE SUBORDINATED NOTES DUE 2007
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1 (the "Supplemental Indenture"), dated as
of March __, 2000, between SCI Systems, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), and Bank One
Trust Company, National Association, a ___________ duly organized and existing
under the laws of _____________, as Trustee (the "Trustee").
RECITALS
The Company and the Trustee have heretofore executed a Subordinated
Indenture (the "Base Indenture" and, together with this Supplemental Indenture,
the "Indenture"), dated as of March __, 2000, providing for the issuance from
time to time of series of the Company's Securities to be issued in one or more
series as therein provided.
Sections 201 and 301 of the Base Indenture provide for various matters
with respect to any series of Securities issued under the Base Indenture to be
established in an indenture supplemental to the Base Indenture.
Section 901 of the Base Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Base Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Base Indenture.
For and in consideration of the premises and the issuance of the Notes
provided for herein, it is mutually covenanted and agreed, for the equal and
proportionate benefit of the Holders of the Notes, as follows:
Article 1
RELATION TO BASE INDENTURE; DEFINITIONS
Section 1.1. Relation to Base Indenture. This Supplemental Indenture
constitutes an integral part of the Indenture. In the event of inconsistencies
between the Base Indenture and this Supplemental Indenture, the terms hereof
shall govern.
Section 1.2. Certain Definitions. For all purposes of this
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) capitalized terms used herein without definition have the
meanings specified in the Base Indenture;
(2) all other terms used herein without definition which are
defined in the TIA, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE> 3
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Supplemental Indenture;
(5) the words "herein", "hereof', "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(6) the following terms have the meanings assigned to them in
this Article and include the plural as well as the singular:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities or by agreement or otherwise.
"Board of Directors" means, with respect to any Person, either the
board of directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the secretary or an assistant secretary of such
Person to have been duly adopted by the Board of Directors of such Person and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participation rights in or other equivalents
(however designated) of such Person's equity (however designated) whether now
outstanding or issued after the date of this Indenture.
"Change of Control" means any event where: (i) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of shares representing more than 50% of the combined voting power
of the then outstanding securities entitled to vote generally in elections of
directors of the Company ("Voting Stock"), (ii) the Company consolidates with
or merges into any other Person, or any other Person merges into the
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<PAGE> 4
Company, and, in the case of any such transaction, the outstanding Common Stock
is reclassified into or exchanged for any other property or securities, unless
the stockholders of the Company immediately before such transaction own,
directly or indirectly immediately following such transaction, at least a
majority of the combined voting power of the then outstanding voting securities
entitled to vote generally in elections of directors of the corporation
resulting from such transaction in substantially the same respective
proportions as their ownership of the Voting Stock immediately before such
transaction, (iii) the Company or the Company and its Subsidiaries, taken as a
whole, sells, assigns, conveys, transfers or leases all or substantially all
the assets of the Company or of the Company and its Subsidiaries, taken as a
whole, as applicable, (other than to one or more wholly-owned Subsidiaries of
the Company) or (iv) any time the Continuing Directors do not constitute a
majority of the Board of Directors of the Company (or, if applicable, a
successor corporation to the Company); provided, however, that (a) a Change of
Control under clause (i), (ii) or (iii) above shall not be deemed to have
occurred if the Daily Market Price per share of Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the Change of Control or the public announcement
of the Change of Control (in the case of a Change of Control under clause (i)
above) or the period of 10 consecutive Trading Days ending immediately before
the Change of Control (in the case of a Change of Control under clause (ii) or
(iii) above) shall equal or exceed 105% of the Conversion Price of the Notes in
effect on the date of such Change of Control or the public announcement of such
Change of Control, as applicable, or (b) a Change of Control under clause (i),
(ii) or (iii) above shall not be deemed to have occurred if at least 90% of the
consideration in the Change of Control transaction consists of shares of
capital stock traded on a U.S. national securities exchange or quoted on the
NASDAQ National Market (the "NNM") or other established automated
over-the-counter trading market in the United States, and as a result of such
transaction, the Notes become convertible solely into such capital stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body
performing such duties at such time.
"Common Stock" means the Company's common stock, $0.10 par value per
share.
"Company" means the Person named as the "Company" in the first
paragraph of this Supplemental Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the last reported sale price
regular way of the Common Stock
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<PAGE> 5
as reported on the New York Stock Exchange (the "NYSE"), or if the Common Stock
is not then listed on the NYSE, as reported on the principal national
securities exchange upon which the Common Stock is listed, or (b) if there is
no such reported sale on the day in question, on the basis of the average of
the closing bid and asked quotations regular way as so reported, or (c) if the
Common Stock is not listed on the NYSE or on any national securities exchange,
on the basis of the average of the high bid and low asked quotations regular
way on the day in question in the over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System, or if
not so quoted, as reported by National Quotation Bureau, Incorporated, or a
similar organization.
"Designated Event" means the occurrence of a Change of Control or a
Termination of Trading.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company that meets the requirements set forth in
Section 102 of the Base Indenture.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in TIA Section 314(e) to the
extent applicable.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" of a Person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
"Termination of Trading" means an event where the Common Stock (or
other securities into which the Notes are then convertible) is neither listed
for trading on a United States national securities exchange nor approved for
trading on the NNM or other established automated over-the-counter trading
market in the United States.
"Trading Day" means (A) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business, (B) if the applicable
security is quoted on the NNM, a day on which trades may be made thereon or (C)
if the applicable security is not so listed, admitted for trading or quoted,
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 execute order to
close.
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<PAGE> 6
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively,
and who shall have direct responsibility for the administration of this
Indenture or to whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular subject.
Section 1.3. Other Definitions.
<TABLE>
<CAPTION>
Defined in
Term Section
---- -------
<S> <C>
Base Indenture...............................................................Recitals
Commencement Date............................................................4.4
Conversion Shares............................................................5.8
Current Market Price.........................................................5.8
Default......................................................................Base Indenture
Designated Event Offer.......................................................4.8
Designated Event Payment.....................................................4.8
Designated Event Payment Date ..............................................4.9
Depositary...................................................................Base Indenture
Distribution Date............................................................5.8
Distribution Record Date.....................................................5.8
Event of Default.............................................................Base Indenture
Excess Payment ..............................................................5.6
Global Securities............................................................Base Indenture
Indenture....................................................................Recitals
Interest Payment Date........................................................Base Indenture
Notes........................................................................2.1
Purchase Date................................................................5.8
Paying Agent.................................................................2.4
Registrar....................................................................2.4
Regular Record Date..........................................................Base Indenture
Rights.......................................................................5.8
Senior Indebtedness..........................................................Base Indenture
Supplemental Indenture.......................................................Recitals
Tender Period................................................................4.9
TIA..........................................................................Base Indenture
</TABLE>
5
<PAGE> 7
Article 2
THE NOTES
Section 2.1. Title of the Securities. There shall be a series of
Securities designated the "__ % Convertible Subordinated Notes due 2007" (the
"Notes").
Section 2.2. Limitation on Aggregate Principal Amount of the Notes.
The aggregate principal amount of the Notes shall be limited to $400,000,000.
Section 2.3. Form, Dating and Denomination of the Notes. The Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit A, which is a part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage (provided
that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. The Notes shall be dated the
date of their authentication. The Notes shall be issued in fully registered
form, without coupons, in denominations of $1,000 of principal amount and
integral multiples of $1,000.
Section 2.4. Registrar, Paying Agent and Conversion Agent. The Company
shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Notes may be presented for purchase or payment ("Paying Agent") and an
office or agency where Notes may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents. The term
Paying Agent includes any additional paying agent. The term Conversion Agent
includes any additional conversion agent. The Registrar shall be a "Securities
Registrar" under the Base Indenture and the Paying Agent shall be a "Paying
Agent" under the Base Indenture.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (provided, however,
that a separate agreement shall not be necessary in the case of the Trustee
serving in any such capacity). The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee
in writing of the name and address of any such agent. If the Company fails to
maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation from the Company
therefor.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Notes, and the Trustee accepts
such appointment. In acquiring such appointments, the Trustee shall, to the
extent serving in any such capacity, be entitled to each of the immunities,
benefits, indemnifications and rights of reimbursement provided to it under the
Indenture as Trustee.
Section 2.5. Paying Agent to Hold Money and Notes in Trust. Except as
otherwise provided herein, on or prior to each due date of payments in respect
of any Note, the Company shall deposit with the Paying Agent a sum of money (in
immediately available funds if
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<PAGE> 8
deposited on the due date) or Common Stock sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders of the Notes or the Trustee all money and Common Stock
held by the Paying Agent for the making of payments in respect of the Notes and
shall notify the Trustee of any default by the Company in making any such
payment. At any time during the continuance of any such default, the Paying
Agent shall, upon the written request of the Trustee, forthwith pay to the
Trustee all money and Common Stock so held in trust. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money and Common Stock held by it as Paying Agent and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money and Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or Common Stock.
ARTICLE 3
INTEREST
SECTION 3.1. Payment of Interest. Interest shall accrue on the Notes
at a rate of __% per annum from March __, 2000. The Interest Payment Dates in
respect of the Notes shall be _______ __ and _______ __ of each year,
commencing _______ __, 2000. The Regular Record Dates in respect of such
Interest Payment Dates shall be _______ __ and _______ __ of each year,
respectively, commencing _______ __, 2000. The Depositary for the Notes shall
be the Depositary Trust Company and so long as the Notes are Global Securities,
the interest payable on the Notes will be paid to Cede & Co., the nominee of
the Depositary, or its registered assigns as the registered owner of such
Global Securities. Subject to the provisions of Section 308 of the Base
Indenture, each Note delivered under this Indenture upon registration of
transfer of, or in exchange for, or in lieu of, or in substitution for, any
other Note, shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
SECTION 3.2. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. In
the event that any principal of or premium, if any, or interest on the Notes is
not paid when due, then except to the extent permitted by law, such overdue
principal, premium, if any and interest shall bear interest until paid at the
rate of interest set forth in Section 3.1, compounded semi-annually.
ARTICLE 4
REDEMPTION
SECTION 4.1. Optional Redemption. The Company may redeem all or any
portion of the Notes, at the times, upon the terms and at the redemption prices
set forth in each of the Notes. Any redemption pursuant to this Section 4.1
shall be made pursuant to the provisions of Article 11 of the Base Indenture.
SECTION 4.2. Selection of Notes to be Redeemed. If less than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed by
a method that complies
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<PAGE> 9
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or by such other method as the Trustee considers fair and
appropriate. The Trustee shall make the selection not more than 60 days and not
less than 30 days before the redemption date from Notes outstanding not
previously called for redemption. The Trustee may select for redemption
portions of the principal of Notes that have denominations larger than $1,000.
Notes and portions of them it selects shall be in principal amounts of $1,000
or integral multiples of $1,000. Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be called for redemption.
If any Note selected for partial redemption is converted in part after
such selection, the converted portion of such Note shall be deemed (so far as
may be) to be the portion to be selected for redemption. The Notes (or portions
thereof) so selected shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is converted in whole or in
part before the mailing of the notice of redemption. Upon any redemption of
less than all the Notes, the Company and the Trustee may treat as outstanding
any Notes surrendered for conversion during the period 15 days next preceding
the mailing of a notice of redemption and need not treat as outstanding any
Note authenticated and delivered during such period in exchange for the
unconverted portion of any Note converted in part during such period.
Section 4.3. Designated Event Offer. Upon the occurrence of a
Designated Event, each holder of Notes shall have the right, in accordance with
this Section 4.3 and Section 4.4 hereof, to require the Company to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
holder's Notes pursuant to the terms of an offer made as provided in Section
4.4 (the "Designated Event Offer") at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Amounts, if any, thereon to the Designated Event Payment Date (the "Designated
Event Payment").
Section 4.4. Designated Event Procedures. In the event that, pursuant
to Section 4.3 hereof, the Company shall commence a Designated Event Offer, the
Company shall follow the procedures in this Section 4.4.
The Designated Event Offer shall remain open for a period specified by
the Company which shall be no less than 30 days and no more than 60 days from
and including the date of the mailing of notice provided for below (the
"Commencement Date"), except to the extent that a longer period is required by
applicable law (the "Tender Period"). On the day (the "Designated Event Payment
Date") immediately following the last day of the Tender Period, the Company
shall purchase the principal amount of Notes duly surrendered for repurchase
and not withdrawn.
If a Designated Event Payment Date is after a record date and before
the related interest payment date, accrued interest to the related interest
payment date will be paid to the Persons in whose names the Notes (or one or
more predecessor Notes) are registered at the close of business on such record
date, notwithstanding the repurchase of any such Notes on such Designated Event
Payment Date, and no additional interest will be payable to Noteholders who
tender Notes for purchase on such Designated Event Payment Date.
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<PAGE> 10
The Company shall provide the Trustee with written notice of the
Designated Event Offer at least 10 Business Days before the Commencement Date.
Within 30 days following any Designated Event, unless the Company is
entitled to and has previously elected to redeem all of the outstanding Notes
at its option and has previously given holders notice of its intention to
redeem all of the outstanding Notes in accordance with Section 4.1 of this
Indenture, the Company or the Trustee (at the request and expense of the
Company) shall send, by first class mail, a notice to each of the Noteholders,
which shall govern the terms of the Designated Event Offer and shall state:
(a) that the Designated Event Offer is being made pursuant to this
Section 4.4 and that all Notes validly tendered will be accepted for
payment;
(b) the purchase price (as determined in accordance with Section
4.4 hereof), the length of time the Designated Event Offer will remain open
and the Designated Event Payment Date;
(c) that any Note or portion thereof not validly tendered or
accepted for payment will continue to accrue interest and will continue to
have conversion rights;
(d) that, unless the Company defaults in the payment of the
Designated Event Payment, any Note or portion thereof accepted for payment
pursuant to the Designated Event Offer shall cease to accrue interest from
and after the Designated Event Payment Date and will cease to have
conversion rights after the Designated Event Payment Date;
(e) that Noteholders electing to have a Note or portion thereof
purchased pursuant to any Designated Event Offer will be required to
surrender the Note, with the form entitled "Option of Noteholder To Elect
Purchase", that is set forth in Exhibit A hereto, on the reverse of the
Note completed, to a Paying Agent at the address specified in the notice
(which shall include an address in the Borough of Manhattan, The City of
New York) prior to the close of business on the third Business Day
preceding the Designated Event Payment Date;
(f) that Noteholders will be entitled to withdraw their election
if a Paying Agent receives, not later than the close of business on the
second Business Day preceding the Designated Event Payment Date, a letter
or facsimile transmission setting forth the name of the Noteholder, the
principal amount of the Notes or portion thereof delivered for purchase and
a statement that such Noteholder is withdrawing his election to have such
Notes or portions thereof purchased; and
(g) that Noteholders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple thereof.
In addition, the notice shall contain all instructions, other
information and materials that the Company shall reasonably deem necessary to
enable such Noteholders to tender Notes pursuant to the Designated Event Offer
or to withdraw tendered Notes. If the
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<PAGE> 11
Company is not required to mail such notice because, as provided above, it has
previously given notice of its intention to redeem the Notes in whole but the
Company thereafter defaults in the payment of the redemption price (including
accrued interest) on any of the Notes on the relevant redemption date, then the
Company shall be required to give notice pursuant to this Section 4.4 no later
than the second Business Day following such redemption date, in which case the
Tender Period shall be 30 days except to the extent that a longer period is
required by applicable law. In the event that the Company is required by
applicable law to extend the Tender Period beyond the Designated Event Payment
Date set forth in such notice, the Company will, as promptly as possible, issue
a press release and send notice to holders announcing such extension and the
new Designated Event Payment Date, which press release and notice shall state
the new deadlines for surrendering and withdrawing Notes.
Prior to 10:00 A.M. (New York City Time) on the Designated Event
Payment Date, the Company shall irrevocably deposit with the Trustee or the
Paying Agent in immediately available funds an amount equal to the Designated
Event Payment in respect of all Notes or portions thereof validly tendered and
not withdrawn, such funds to be held for payment in accordance with the terms
of this Section 4.4. On the Designated Event Payment Date, the Company shall,
to the extent lawful, (i) accept for payment the Notes or portions thereof
validly tendered pursuant to the Designated Event Offer, (ii) deliver or cause
to be delivered to the Trustee the Notes so accepted and (iii) deliver to the
Trustee an Officers' Certificate identifying the Notes or portions thereof
tendered and not withdrawn to the Company and stating that such Notes have been
accepted for payment by the Company in accordance with the terms of this
Section 4.4. The Paying Agent shall promptly (but in any case not later than
five calendar days after the Designated Event Payment Date) mail or deliver to
each holder of Notes so accepted for payment an amount equal to the Designated
Event Payment for such Notes, and the Trustee shall promptly authenticate and
mail or otherwise deliver to each such Noteholder a new Note equal in principal
amount to any unpurchased portion of the Note surrendered; provided that each
new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. Any Notes not so accepted shall be promptly mailed or otherwise
delivered by or on behalf of the Company to the holders thereof. The Company
will publicly announce the results of the Designated Event Offer on, or as soon
as practicable after, the Designated Event Payment Date.
The Designated Event Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act and any other securities
laws and regulations (including, without limitation, Rules 13e-4 and 14e-1
under the Exchange Act) to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes in connection with a Designated
Event.
ARTICLE 5
CONVERSION
SECTION 5.1. Conversion Privilege. A holder of any Note may convert
the principal amount thereof (or any portion thereof that is an integral
multiple of $1,000) into fully paid and nonassessable shares of Common Stock at
any time after 90 days following the Issuance Date and prior to the close of
business on the Business Day immediately preceding the final maturity date of
the Note at the Conversion Price then in effect, except that, with respect to
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<PAGE> 12
any Note called for redemption, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the redemption date
(unless the Company shall default in making the redemption payment when it
becomes due, in which case the conversion right shall terminate at the close of
business on the date on which such default is cured). The number of shares of
Common Stock issuable upon conversion of a Note is determined by dividing the
principal amount of the Note converted by the Conversion Price in effect on the
Conversion Date.
"Conversion Price" means $_____, as the same may be adjusted from time
to time as provided in this Article V.
Provisions of this Indenture that apply to conversion of all of a Note
also apply to conversion of a portion of it. A holder of Notes is not entitled
to any rights of a holder of Common Stock until such holder of Notes has
converted such Notes into Common Stock, and only to the extent that such Notes
are deemed to have been converted into Common Stock under this Article V.
SECTION 5.2. Conversion Procedure. To convert a Note, a holder must
satisfy the requirements in paragraph 10 of the Notes. The date on which the
holder satisfies all of those requirements is the conversion date (the
"Conversion Date"). As promptly as practicable on or after the Conversion Date,
the Company shall issue and deliver to the Trustee a certificate or
certificates for the number of whole shares of Common Stock issuable upon the
conversion and a check or other payment for any fractional share in an amount
determined pursuant to Section 5.3. Such certificate or certificates will be
sent by the Trustee to the Conversion Agent for delivery to the holder. The
Person in whose name the certificate is registered shall become the stockholder
of record on the Conversion Date and, as of such date, such Person's rights as
a Noteholder with respect to the converted Note shall cease; provided, however,
that, except as otherwise provided in this Section 5.2, no surrender of a Note
on any date when the stock transfer books of the Company shall be closed shall
be effective to constitute the Person entitled to receive the shares of Common
Stock upon such conversion as the stockholder of record of such shares of
Common Stock on such date, but such surrender shall be effective to constitute
the Person entitled to receive such shares of Common Stock as the stockholder
of record thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; provided, further,
however, that such conversion shall be at the Conversion Price in effect on the
date that such Note shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed.
No payment or adjustment will be made for accrued and unpaid interest
on a converted Note or for dividends or distributions on, attributable to,
shares of Common Stock issued upon conversion of a Note, except that, if any
holder surrenders a Note for conversion after the close of business on any
record date for the payment of an installment of interest and prior to the
opening of business on the next succeeding interest payment date, then,
notwithstanding such conversion, accrued and unpaid interest payable on such
Note on such interest payment date shall be paid on such interest payment date
to the Person who was the holder of such Note (or one or more predecessor
Notes) at the close of business on such record date. In the case of any Note
surrendered for conversion after the close of business on a record date for the
payment of an installment of interest and prior to the opening of business on
the next
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succeeding interest payment date, then, unless such Note has been called for
redemption on a redemption date or is to be repurchased on a Designated Event
Payment Date after such record date and prior to such interest payment date,
such Note, when surrendered for conversion, must be accompanied by payment in
an amount equal to the interest payable on such interest payment date on the
principal amount of such Note so converted. Holders of Common Stock issued upon
conversion will not be entitled to receive any dividends payable to holders of
Common Stock as of any record time before the close of business on the
Conversion Date.
If a holder converts more than one Note at the same time, the number
of whole shares of Common Stock issuable upon the conversion shall be based on
the total principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Trustee shall
authenticate for the holder a new Note equal in principal amount to the
unconverted portion of the Note surrendered.
SECTION 5.3. Fractional Shares. The Company will not issue fractional
shares of Common Stock upon conversion of a Note. In lieu thereof, the Company
will pay an amount in cash based upon the Daily Market Price of the Common
Stock on the Trading Day prior to the Conversion Date.
SECTION 5.4. Taxes on Conversion. The issuance of certificates for
shares of Common Stock upon the conversion of any Note shall be made without
charge to the converting Noteholder for such certificates or for any tax in
respect of the issuance of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed by, the
holder or holders of the converted Note; provided, however, that in the event
that certificates for shares of Common Stock are to be issued in a name other
than the name of the holder of the Note converted, such Note, when surrendered
for conversion, shall be accompanied by an instrument of assignment or
transfer, in form satisfactory to the Company, duly executed by the registered
holder thereof or his duly authorized attorney; and provided, further, 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
certificates in a name other than that of the holder of the converted Note, and
the Company shall not be required to issue or deliver such certificates unless
or until the Person or Persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or is not applicable.
SECTION 5.5. Company to Provide Stock. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock, solely for the purpose of issuance upon conversion
of Notes as herein provided, a sufficient number of shares of Common Stock to
permit the conversion of all outstanding Notes for shares of Common Stock.
All shares of Common Stock which may be issued upon conversion of the
Notes shall be duly authorized, validly issued, fully paid and nonassessable
when so issued. The Company shall take such action from time to time as shall
be necessary so that par value of the Common Stock shall at all times be equal
to or less than the Conversion Price then in effect.
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<PAGE> 14
The Company shall from time to time take all action necessary so that
the Common Stock which may be issued upon conversion of Notes, immediately upon
their issuance will be listed on the principal securities exchanges,
interdealer quotation systems (including the NNM) and markets, if any, on which
other shares of Common Stock are then listed or quoted.
SECTION 5.6. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common
Stock to holders of Common Stock, (2) make a distribution in shares of Common
Stock to holders of Common Stock, (3) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (4) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the holder of any Note thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock which he
would have owned immediately following such action had such Notes been
converted immediately prior thereto. Any adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision or combination. In the event
such dividend or distribution is not paid or made, or such subdivision or
combination is not effected, the Conversion Price shall be adjusted immediately
to be the Conversion Price which would then be in effect if such dividend,
distribution, subdivision or combination had not occurred.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them to subscribe for or purchase shares of Common
Stock (or securities convertible into Common Stock) at a price per share (or
having a conversion price per share) less than the Current Market Price per
share (as determined pursuant to subsection (f) below) of the Common Stock on
the record date for determining the holders of the Common Stock entitled to
receive such rights or warrants, 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 such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding as of the
close of business on such record date plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of Common
Stock so offered for subscription or purchase (or the aggregate conversion
price of the convertible securities so offered) would purchase at such Current
Market Price, and of which the denominator shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock so offered for subscription or purchase (or into which
the convertible securities so offered are convertible). Such adjustments shall
become effective immediately after such record date. For the purposes of this
subsection (b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of such Common Stock. The Company shall not issue any rights, options or
warrants in respect of shares of Common Stock held in the treasury of the
Company.
(c) In case the Company shall distribute to all holders of Common
Stock shares of Capital Stock of the Company (other than Common Stock),
evidences of indebtedness,
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<PAGE> 15
cash, rights or warrants entitling the holders thereof to subscribe for or
purchase securities (other than rights or warrants described in subsection (b)
above) or other assets (including securities of Persons other than the Company
but excluding (i) dividends or distributions paid exclusively in cash, (ii)
dividends and distributions described in subsection (b) above and (iii)
distributions in connection with the consolidation, merger or transfer of
assets covered by Section 5.13), then in each such case 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 record date
for the determination of the holders of Common Stock entitled to receive such
distribution by a fraction of which the numerator shall be the Current Market
Price (determined as provided in subsection (f) below) of the Common Stock on
the record date mentioned below less the fair market value on such record date
(as determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and described in a Board
Resolution delivered to the Trustee) of the portion of the evidences of
indebtedness, shares of Capital Stock, cash, rights, warrants or other assets
so distributed applicable to one share of Common Stock (determined on the basis
of the number of shares of the Common Stock outstanding on the record date),
and of which the denominator shall be such Current Market Price of the Common
Stock. Such adjustment shall become effective immediately after the record date
for the determination of the holders of Common Stock entitled to receive such
distribution. In the event such distribution is not paid or made, the
Conversion Price shall be adjusted immediately to be the Conversion Price which
would then be in effect if such distribution had not occurred. Notwithstanding
the foregoing, in case the Company shall distribute rights or warrants to
subscribe for additional shares of the Company's Capital Stock (other than
rights or warrants referred to in subsection (b) above) ("Rights") to all
holders of Common Stock, the Company may, in lieu of making any adjustment
pursuant to the foregoing provisions of this Section 5.6(c), make proper
provision so that each holder of a Note who converts such Note (or any portion
thereof) after the record date for such distribution and prior to the
expiration or redemption of the Rights shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable upon such
conversion (the "Conversion Shares"), a number of Rights to be determined as
follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing such
Rights (the "Distribution Date"), the same number of Rights to which a holder
of a number of shares of Common Stock equal to the number of Conversion Shares
is entitled at the time of such conversion in accordance with the terms and
provisions of the Rights; and (ii) if such conversion occurs after the
Distribution Date, the same number of Rights to which a holder of the number of
shares of Common Stock into which the principal amount of the Note so converted
was convertible immediately prior to the Distribution Date would have been
entitled on the Distribution Date in accordance with the terms and provisions
of the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time
make a distribution to all holders of its Common Stock exclusively in cash
(including any distributions of cash out of current or retained earnings of the
Company but excluding any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to paragraph (c) of this
Section) in an aggregate amount that, together with the sum of (x) the
aggregate amount of any other distributions made exclusively in cash to all
holders of Common Stock within the 12 months preceding the date fixed for
determining the stockholders entitled to such distribution (the "Distribution
Record Date") and in respect of which no Conversion Price adjustment pursuant
to paragraph (c) or (e) of this Section or this paragraph (d) has been made
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<PAGE> 16
plus (y) the aggregate amount of all Excess Payments in respect of any tender
offers or other negotiated transactions by the Company or any of its
Subsidiaries for Common Stock concluded within the 12 months preceding the
Distribution Record Date and in respect of which no Conversion Price adjustment
pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has
been made, exceeds 15% of the product of the Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the Common Stock
on the Distribution Record Date multiplied by the number of shares of Common
Stock outstanding on the Distribution Record Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying such Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this paragraph (d) by a fraction of which the numerator shall
be the Current Market Price per share (determined as provided in paragraph (f)
of this Section) of the Common Stock on the Distribution Record Date less the
sum of the aggregate amount of cash and the aggregate Excess Payments so
distributed or paid within such 12 month period (including, without limitation,
the distribution in respect of which such adjustment is being made) applicable
to one share of Common Stock (which shall be determined by dividing the sum of
the aggregate amount of cash and the aggregate Excess Payments so distributed
or paid within such 12 months (including, without limitation, the distribution
in respect of which such adjustment is being made) by the number of shares of
Common Stock outstanding on the Distribution Record Date) and the denominator
shall be such Current Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the Distribution Record
Date, such reduction to become effective immediately prior to the opening of
business on the day following the Distribution Record Date. In the event such
distribution is not paid or made, the Conversion Price shall be adjusted
immediately to be the Conversion Price which would then be in effect if such
distribution had not occurred.
(e) In case a tender offer or other negotiated transaction made by the
Company or any Subsidiary of the Company for all or any portion of the Common
Stock shall be consummated, if an Excess Payment is made in respect of such
tender offer or other negotiated transaction and the aggregate amount of such
Excess Payment, together with the sum of (x) the aggregate amount of any
distributions, by dividend or otherwise, to all holders of the Common Stock
made in cash (including any distributions of cash out of current or retained
earnings of the Company, but excluding any cash that is distributed as part of
a distribution requiring a Conversion Price adjustment pursuant to paragraph
(c) of this Section) within the 12 months preceding the date of payment of such
current negotiated transaction consideration or expiration of such current
tender offer, as the case may be (the "Purchase Date"), and as to which no
adjustment in the Conversion Price pursuant to paragraph (c) or paragraph (d)
of this Section or this paragraph (e) has been made plus (y) the aggregate
amount of all Excess Payments in respect of any other tender offers or other
negotiated transactions by the Company or any of its Subsidiaries for Common
Stock concluded within the 12 months preceding the Purchase Date and in respect
of which no adjustment in the Conversion Price pursuant to paragraph (c) or (d)
of this Section or this paragraph (e) has been made, exceeds 15% of the
product of the Current Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the Purchase Date
multiplied by the number of shares of Common Stock outstanding on the Purchase
Date (including any tendered shares but excluding any shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying such Conversion Price in
effect immediately prior to the effectiveness
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<PAGE> 17
of the Conversion Price reduction contemplated by this paragraph (e) by a
fraction of which the numerator shall be the Current Market Price per share
(determined as provided in paragraph (f) of this Section) of the Common Stock
on the Purchase Date less the sum of the aggregate amount of cash and the
aggregate Excess Payments so distributed or paid within such 12 month period
(including, without limitation, the Excess Payment in respect of which such
adjustment is being made) applicable to one share of Common Stock (which shall
be determined by dividing the sum of the aggregate amount of cash and the
aggregate Excess Payments so distributed or paid within such 12 months
(including, without limitation, the Excess Payment in respect of which such
adjustment is being made) by the number of shares of Common Stock outstanding
on the Purchase Date and the denominator shall be such Current Market Price per
share (determined as provided in paragraph (f) of this Section) of the Common
Stock on the Purchase Date, such reduction to become effective immediately
prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the Daily Market Prices for the shorter of
(i) 30 consecutive Business Days ending on the last full Trading Day on the
exchange or market referred to in determining such Daily Market Prices prior to
the time of determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such rights or such
warrants or such other distribution or such tender offer or other negotiated
transaction through such last full Trading Day on the exchange or market
referred to in determining such Daily Market Prices prior to the time of
determination.
"Excess Payment" means the excess of (A) the aggregate of the cash and
fair market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive evidence of such fair market value and
described in a Board Resolution delivered to the Trustee) of other
consideration paid by the Company or any of its Subsidiaries with respect to
the shares of Common Stock acquired in a tender offer or other negotiated
transaction over (B) the Daily Market Price on the Trading Day immediately
following the completion of the tender offer or other negotiated transaction
multiplied by the number of acquired shares of Common Stock.
In any case in which this Section 5.6 shall require that an adjustment
be made immediately following a record date for an event, the Company may elect
to defer, until such event, issuing to the holder of any Note converted after
such record date the shares of Common Stock and other Capital Stock of the
Company issuable upon such conversion over and above the shares of Common Stock
and other Capital Stock of the Company issuable upon such conversion on the
basis of the Conversion Price prior to adjustment; and, in lieu of the shares
the issuance of which is so deferred, the Company shall issue or cause its
transfer agents to issue due bills or other appropriate evidence of the right
to receive such shares.
SECTION 5.7. No Adjustment. No adjustment in the Conversion Price
shall be required until cumulative adjustments amount to 1% or more of the
Conversion Price as last adjusted; provided, however, that any adjustments
which by reason of this Section 5.7 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article V shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be. No adjustment need be
made for rights to
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purchase Common Stock pursuant to a Company plan for reinvestment of dividends
or interest. No adjustment need be made for a change in the par value or no par
value of the Common Stock.
SECTION 5.8. Other Adjustments. In the event that, as a result of an
adjustment made pursuant to Section 5.6 above, the holder of any Note
thereafter surrendered for conversion shall become entitled to receive any
shares of Capital Stock of the Company other than shares of its Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of any Notes shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Article V.
In the event that any shares of Common Stock (or securities
convertible into Common Stock) issuable upon exercise of any of the rights,
options or warrants referred to in Section 5.6(b) and Section 5.6(c) hereof are
not delivered prior to the expiration of such rights, options, or warrants, the
Conversion Price shall be readjusted to the Conversion Price which would
otherwise have been in effect had the adjustment made upon the issuance of such
rights, options or warrants been made on the basis of delivery of only the
number of such rights, options and warrants which were actually exercised.
SECTION 5.9. Adjustments for Tax Purposes. The Company may, at its
option, make such reductions in the Conversion Price, in addition to those
required by Section 5.6 above, as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for federal income tax purposes.
SECTION 5.10. Adjustments by the Company. The Company from time to
time may, to the extent permitted by law, reduce the Conversion Price by any
amount for any period of at least 20 days, in which case the Company shall give
at least 15 days' notice of such reduction in accordance with Section 5.11, if
the Board of Directors has made a determination that such reduction would be in
the best interests of the Company, which determination shall be conclusive.
SECTION 5.11. Notice of Adjustment. Whenever the Conversion Price is
adjusted, the Company shall promptly mail to Noteholders at the addresses
appearing on the Registrar's books a notice of the adjustment and file with the
Trustee an Officers' Certificate briefly stating the facts requiring the
adjustment and the manner of computing it.
SECTION 5.12. Notice of Certain Transactions. In the event that:
(a) the Company takes any action which would require an adjustment in
the Conversion Price;
(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 5.13; or
(c) there is a dissolution or liquidation of the Company;
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the Company shall mail to Noteholders at the addresses appearing on the
Registrar's books and the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least
15 days before such date; however, failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause
(a), (b) or (c) of this Section 5.12.
SECTION 5.13. Effect of Reclassifications, Consolidations, Mergers,
Continuances or Sales on Conversion Privilege. If any of the following shall
occur, namely: (i) any reclassification or change of outstanding shares of
Common Stock issuable upon conversion of Notes (other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination), (ii) any consolidation or merger
to which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or par value, or from par value to no par
value, or from no par value to par value or as a result of a subdivision or
combination) in, outstanding shares of Common Stock, (iii) any continuance in a
new jurisdiction which results in a reclassification of, or change (other than
a change in name, or par value, or from par value to no par value, or from no
par value to par value) in, outstanding shares of Common Stock, or (iv) any
sale or conveyance of all or substantially all of the property of the Company
(determined on a consolidated basis), then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, continuance, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee providing that the holder of each Note
then outstanding shall have the right to convert such Note into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger,
continuance, sale or conveyance by a holder of the number of shares of Common
Stock deliverable upon conversion of such Note immediately prior to such
reclassification, change, consolidation, merger, continuance, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article V. The
foregoing, however, shall not in any way affect the right a holder of a Note
may otherwise have, pursuant to clause (ii) of the last sentence of subsection
(c) of Section 5.6, to receive Rights upon conversion of a Note. If, in the
case of any such consolidation, merger, continuance, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock includes shares of stock or other securities and
property of a corporation or other business entity other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger,
continuance, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation or other business entity and shall contain
such additional provisions to protect the interests of the holders of the Notes
as the Board of Directors of the Company shall reasonably consider necessary by
reason of the foregoing. The provision of this Section 5.13 shall similarly
apply to successive consolidations, mergers, continuances, sales or
conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 5.13, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by holders of the Notes upon the conversion of their Notes after any
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such reclassification, change, consolidation, merger, continuance, sale or
conveyance and any adjustment to be made with respect thereto and (y) an
Opinion of Counsel stating that all conditions precedent relating to such
transaction have been complied with, and shall promptly mail notice thereof to
all holders.
SECTION 5.14. Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article V should be made, how it should
be made or what such adjustment should be or whether a supplemental indenture
is required by this Article V, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be protected in relying upon, the
Officers' Certificate with respect thereto which the Company is obligated to
file with the Trustee pursuant to Section 5.11. The Trustee makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Notes, and the Trustee shall not be responsible for the
Company's failure to comply with any provisions of this Article V.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 5.13, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 5.13.
SECTION 5.15. Cancellation of Converted Notes. All Notes delivered for
conversion shall be delivered to the Trustee to be canceled by or at the
direction of the Trustee, which shall dispose of the same as provided in
Section 2.11.
SECTION 5.16. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Noteholders a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default relating
to the failure to pay any principal of or premium, if any, interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
SECTION 5.17. Reports by Trustee to Noteholders. Within 60 days after
the reporting date stated in Section 12.10, the Trustee shall mail to
Noteholders a brief report dated as of such reporting date that complies with
TIA Section 313(a) if and to the extent required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the Commission and each stock exchange on which the Notes are
listed. The Company shall notify the Trustee when the Notes are listed on any
stock exchange and of any delisting thereof.
SECTION 5.18. Additional Covenant of the Company. All shares of Common
Stock delivered upon conversion of the Notes shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim and shall be listed or quoted on each
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<PAGE> 21
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.
ARTICLE 6
SUBORDINATION
SECTION 6.1. Notes Subordinate to Senior Debt. The Company covenants
and agrees, and each Holder of a Note, by such Holder's acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner set forth
in Article __ of the Base Indenture the indebtedness represented by the Notes
is hereby expressly made subordinate and subject in right of payment to all
Senior Indebtedness.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:
if to the Company:
SCI Systems, Inc.
2101 West Clinton avenue
Huntsville, Alabama 35805
Telephone No.
Facsimile No.
Attention: Chief Financial Officer
with a copy to:
Attention: General Counsel
if to the Trustee:
Bank One Trust Company, National Association
Telephone No.
Facsimile No.
Attention: Corporate Trust Department
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<PAGE> 22
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Holder of the Notes shall be
mailed to the Holder of the Notes, by first-class mail, postage prepaid, at the
Holder's address as it appears on the registration books of the Registrar and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder of the Notes or
any defect in it shall not affect its sufficiency with respect to other Holders
of the Notes. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders of the
Notes, it shall mail a copy to the Trustee and each Registrar, Paying Agent,
Conversion Agent or co-registrar.
SECTION 7.2. Communication by Holders with Other Holders. Holders of
the Notes may communicate pursuant to TIA Section 312(b) with other Holders of
the Notes with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and
anyone else shall have the protection of TIA Section 312(c).
SECTION 7.3. Separability Clause. In case any provision in this
Indenture or in the Notes 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 7.4. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Holders of the Notes. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 7.5. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 7.6. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder of the Notes shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 7.7. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
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SECTION 7.8. Multiple Originals. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Supplemental Indenture.
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<PAGE> 24
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Supplemental Indenture on behalf of the respective parties hereto
as of the date first above written.
SCI SYSTEMS, INC.
By
-------------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
[SEAL]
BANK ONE TRUST COMPANY
By
-------------------------------
Name:
Title:
Attest:
- -------------------------------
Title:
[SEAL]
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EXHIBIT A
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SCI SYSTEMS, INC.
__ % Convertible Subordinated Note due 2007
No. R- CUSIP:
Issue Date: March __, 2000 Aggregate Principal Amount $
SCI SYSTEMS, INC., a Delaware corporation, promises to pay to or
registered assigns, the principal amount of ________ Dollars ($_________) on
_______ __, 2007.
Interest Payment Dates: ______ __ and ______ __, commencing ______ __, 2000.
Record Dates: ______ __ and ______ __.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof which further provisions shall for all purposes
have the same effect as if set forth at this place.
[Signature Page Follows]
1
<PAGE> 26
IN WITNESS WHEREOF, SCI Systems, Inc. has caused this Note to be
signed manually or by facsimile by its duly authorized officers and its
corporate seal or a facsimile thereof to be affixed hereto or imprinted hereon.
Dated: SCI SYSTEMS, INC.
[SEAL] By
-------------------------------
Title:
Attest:
- -------------------------------
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY,
as Trustee
By
-----------------------------------
Authorized Signatory
Dated:
-------------------------------
2
<PAGE> 27
[FORM OF REVERSE SIDE OF NOTES]
__ % Convertible Subordinated Note Due 2007
1. Interest. SCI Systems, Inc., a Delaware corporation (the
"Company"), is the issuer of the __% Convertible Subordinated Notes due 2007
(the "Notes"), of which this Note is a part. The Company promises to pay
interest on the Notes in cash semiannually on each ______ __ and ______ __,
commencing on ______ __, 2000, to holders of record at the close of business on
the immediately preceding ______ __ or ______ __, as the case may be.
Interest on the Notes will accrue from the most recent date to which
interest has been paid, or if no interest has been paid, from _______ __, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal of and premium, if any, interest, on the Notes (in each case without
regard to any applicable grace period) at the rate set forth on the face
hereof, compounded semi-annually.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered holders of the
Notes at the close of business on the record date for the applicable interest
payment date even though Notes are canceled after the record date and on or
before the interest payment date. The Noteholder hereof must surrender Notes to
a Paying Agent to collect principal payments. The Company will pay principal,
premium, if any, interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay interest by check payable in such money. It may mail an
interest check to a holder's registered address.
3. Paying Agent and Registrar. The Trustee will act as Paying Agent,
Registrar and Conversion Agent. The Company may change any Paying Agent,
Registrar, or Conversion Agent without prior notice.
4. Indenture. The Company issued the Notes under an Indenture dated as
of March __, 2000 (the "Base Indenture"), between the Company and the Trustee
and the Supplemental Indenture No. 1 thereto dated as of March __, 2000 (the
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture"), between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the TIA. Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Holders of the Notes are referred to the Indenture and the TIA
for a statement of those terms.
The Notes are subordinated and unsecured obligations of the Company
limited to $400,000,000 aggregate principal amount.
The defeasance provisions described in Article IV of the Base
Indenture will not apply to the Notes.
5. Optional Redemption. The Notes are not redeemable at the Company's
option prior to _______ __, 2003. On such date and thereafter, the Notes will
be subject to redemption at the option of the Company, in whole or from time to
time in part (in any integral
R-1
<PAGE> 28
multiple of $1,000), at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning ______ __ of the years indicated (or ________ __ in the case of
2003):
<TABLE>
<CAPTION>
Year Redemption Price
<S> <C>
2003 _____%
2004 _____%
2005 _____%
2006 _____%
</TABLE>
in each case together with accrued interest to (but excluding) the redemption
date (subject to the right of holders of record on the relevant record date to
receive interest due on the corresponding interest payment date). On or after
the redemption date, interest will cease to accrue on the Notes, or portions
thereof, called for redemption unless the Company shall default in the payment
of the redemption price and accrued interest payable on the redemption date on
the Notes to be redeemed.
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each holder of
the Notes to be redeemed at his address of record. Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Notes, the Notes
will be chosen for redemption by the Trustee in accordance with the Indenture.
Unless the Company defaults in making such redemption payment (including
accrued interest), or a Paying Agent is prohibited from making such payment
pursuant to the Indenture, by law or otherwise, interest cease to accrue on the
Notes or portions of them called for redemption on and after the redemption
date.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose
name this Note is registered at the close of business on such record date.
7. Mandatory Redemption. The provisions of Article 12 of the Base
Indenture regarding mandatory redemption pursuant to a sinking fund will not
apply to the Notes.
8. Repurchase at Option of Holder. If there is a Designated Event, the
Company shall be required to offer to purchase on the Designated Event Payment
Date all outstanding Notes at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest to the Designated Event
Payment Date; provided that, on the terms and subject to the conditions set
forth in the Indenture, the Company shall not be required to offer to purchase
the Notes as aforesaid if the Company has given notice of redemption of all of
the outstanding Notes to holders in accordance with the Indenture. If there is
a Designated Event, the Company shall mail a Designated Event Offer to Holder
of Notes prior to any related
R-2
<PAGE> 29
Designated Event Payment Date. Holders of Notes that are subject to an offer to
purchase may elect to have such Notes or portions thereof in authorized
denominations purchased by completing the form entitled "Option of Noteholder
To Elect Purchase" appearing below. Noteholders have the right to withdraw
their election by delivering a written notice of withdrawal to the Company or
the Paying Agent in accordance with the terms of the Indenture.
9. Subordination. The payment of the principal of, premium, if any,
on, interest on and any other amounts due on the Notes is subordinated in right
of payment to all existing and future Senior Debt of the Company, as described
in the Indenture. Each Noteholder, by accepting a Note, agrees to such
subordination and authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee as its attorney-in-fact for such purpose.
10. Conversion. The holder of any Note has the right, exercisable at
any time prior to the close of business on the Business Day immediately
preceding the final maturity date of the Note, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $_____ per share,
subject to adjustment under certain circumstances as provided in the Indenture,
except that if a Note is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately preceding
the date fixed for redemption (unless the Company shall default in making the
redemption payment, including interest when it becomes due, in which case the
conversion right shall terminate at the close of business on the date on which
such default is cured).
Beneficial owners of interests in the Global Securities may exercise
their right of conversion by delivering to the Depositary the appropriate
instructions for conversion pursuant to the Depositary's procedures. Upon
conversion, no adjustment or payment will be made for accrued and unpaid
interest on the Notes so converted or for dividends or distributions on,
attributable to, any Common Stock issued on conversion of the Notes, except
that, if any Noteholder surrenders a Note for conversion after the close of
business on a record date for the payment of interest and prior to the opening
of business on the next interest payment date, then, notwithstanding such
conversion, the interest payable on such interest payment date will be paid on
such interest payment date to the Person who was the registered holder of such
Note on such record date. Any Notes surrendered for conversion during the
period after the close of business on any record date for the payment of
interest and before the opening of business on the next succeeding interest
payment date (except Notes called for redemption on a redemption date or to be
repurchased on a Designated Event Payment Date during such period) must be
accompanied by payment in an amount equal to the interest payable on such
interest payment date on the principal amount of Notes so converted. The number
of shares of Common Stock issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A Note in respect of which a holder has delivered an "Option of
Noteholder to Elect Purchase" form appearing below exercising the option of
such holder to require the Company to purchase such Note may be converted only
if the notice of exercise is withdrawn as provided above and in accordance with
the terms of the Indenture. The above description of
R-3
<PAGE> 30
conversion of the Notes is qualified by reference to, and is subject in its
entirety to, the more complete description thereof contained in the Indenture.
11. Denominations, Transfer, Exchange and Replacement. The Notes are
in registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered, and Notes may be
exchanged, as provided in the Indenture. The Registrar may require a
Noteholder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not exchange or register the transfer of
any Note or portion of a Note selected for redemption (except the unredeemed
portion of any Note being redeemed in part). Also, it need not exchange or
register the transfer of any Note for a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Notes
and ending at the close of business on the day of such mailing. Replacement
Notes for lost, stolen or mutilated Notes may be issued in accordance with the
terms of the Indenture.
12. Persons Deemed Owners. The registered Noteholder of a Note may be
treated as its owner for all purposes.
13. Unclaimed Money. If money for the payment of principal of or
premium, if any, interest on Notes remains unclaimed for two years, the Trustee
and the Paying Agent shall pay the money back to the Company at its written
request. After that, Noteholders of Notes entitled to the money must look to
the Company for payment, unless an abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
14. Defaults and Remedies. The Notes shall have the Events of Default
as set forth in Section 8.1 of the Base Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee, by notice to the Company, or the Noteholders of at least 25% in
aggregate principal amount of the then outstanding Notes, by notice to the
Company and the Trustee, may declare all the Notes to be due and payable
immediately, except that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all unpaid principal, premium, if
any, and accrued and unpaid interest on the Notes shall become due and payable
immediately without further action or notice. Upon acceleration as described in
either of the preceding sentences, the subordination provisions of the
Indenture preclude any payment being made to Noteholders for at least 5
Business Days except as otherwise provided in the Indenture.
The Noteholders of a majority in principal amount of the Notes then
outstanding by written notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal, premium, if any, and interest that has become due
solely because of the acceleration. Noteholders may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Noteholders of a majority in principal amount of the then
outstanding Notes issued under the Indenture may direct the Trustee in its
exercise of any trust or power. The Company must furnish compliance
certificates to the Trustee annually. The above description of Events of
Default and remedies is
R-4
<PAGE> 31
qualified by reference to, and subject in its entirety to, the more complete
description thereof contained in the Indenture.
15. Amendments, Supplements and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Noteholders of at least a majority in principal amount of the
then outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes), and any existing default may be waived with
the consent of the Noteholders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes). Without the consent of any Noteholder, the
Indenture or the Notes may be amended, among other things, to cure any
ambiguity, defect or inconsistency, to provide for assumption by a successor of
the Company's obligations to Noteholders, to make any change that does not
adversely affect the rights of any Noteholder, to qualify the Indenture under
the TIA, or to comply with the requirements of the Commission in order to
maintain the qualification of the Indenture under the TIA.
16. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Paying agent, Transfer Agent
or Conversion Agent may do the same with like rights.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
Each Noteholder, by accepting a Note, waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Notes.
18. Governing Law; Indenture to Control. THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD,
TO THE EXTENT PERMITTED BY LAW, TO CONFLICT OF LAW PROVISIONS THEREOF. IN THE
EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECURITY ON THE ONE HAND
AND THE INDENTURE, ON THE OTHER HAND, THE PROVISIONS OF THE INDENTURE SHALL
CONTROL.
19. Authentication. The Notes shall not be valid until authenticated
by the manual signature of an authorized signatory of the Trustee or an
authenticating agent.
20. Abbreviations. Customary abbreviations may be used in the name of
a Noteholder or an assignee, such as: TEN COM (for tenants in common), TEN ENT
(for tenants by the entireties), JT TEN (for joint tenants with right of
survivorship and not as tenants in common), CUST (for Custodian), and U/G/M/A
(for Uniform Gifts to Minors Act).
21. Definitions. Capitalized terms not defined in this Note have the
meanings given to them in the Indenture.
The Company will furnish to any Noteholder of the Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
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<PAGE> 32
SCI Systems, Inc.
Attention:
R-6
<PAGE> 33
<TABLE>
<CAPTION>
ASSIGNMENT FORM CONVERSION NOTICE
<S> <C>
To assign this Note, fill form below: To convert this Note into the Common Stock of the
Company, check the box:
I or we assign and transfer this Note to: ----
: :
- ---------------------------------- ----
: :
- ---------------------------------- To convert only part of this Note, state the principal
amount to be converted (which must be $1,000 or an
(Insert assignee's Soc. Sec. or tax ID no.) integral multiple of $1,000):
- --------------------------------- --------------------------------
:$ :
- --------------------------------- --------------------------------
- ---------------------------------
If you want the stock certificate made out in another
_________________________________ person's name, fill in the form below:
(Print or type assignee's
Name, address and zip code and soc. sec. Or tax ID no.) --------------------------------
: :
irrevocably appoint --------------------------------
_____________________ agent
to transfer this Note on the books
of the Company.
The agent may substitute another to act for him.
- --------------------------
- --------------------------
- --------------------------
- --------------------------
(Print or type other person's name, address and
zip code)
- ----------------------------------------------------------------------------------------------------------------------
Date: ___________________
Your signature:
- ------------------------
- ----------------------------------------------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
</TABLE>
