SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): December 1, 1999
AMERICA ONLINE, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 001-12143 54-1322110
(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Identification No.)
Incorporation)
22000 AOL Way, Dulles, Virginia 20166
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (703) 265-1000
---------------------------
Item 5. Other Events.
This Current Report on Form 8-K is being filed to incorporate by
reference into Registration Statement No. 333-79489 on Form S-3 the documents
included as exhibits hereto.
On May 27, 1999, America Online, Inc. (the "Company") filed a
Registration Statement on Form S-3 (No. 333-79489) (the "Registration
Statement"), as amended by Amendment No. 1 filed on November 2, 1999, relating
to the registration under the Securities Act of 1933, as amended, of up to an
initial aggregate offering price of $5 billion of debt securities; common stock;
preferred stock; shares of preferred stock represented by depositary shares;
warrants; and stock purchase contracts to purchase common stock or preferred
stock of the Company, which Registration Statement was declared effective on
November 4, 1999.
On December 1, 1999, the Company entered into an Underwriting Agreement
(filed herewith as Exhibit 1.1) with Salomon Smith Barney Inc. and Morgan
Stanley & Co. Incorporated, as representatives of the several underwriters
listed on Schedule II thereto (collectively, the "Underwriters"), pursuant to
which the Company agreed to issue and sell and the Underwriters agreed, subject
to certain conditions, to purchase $2,267,533,000 aggregate principal amount at
maturity of the Company's Convertible Subordinated Notes due December 6, 2019
(the "Notes") registered under the Registration Statement at an initial public
offering price of $551.26 per $1,000 principal at maturity Note (or an aggregate
initial offering price of $1,250,000,242) less underwriting discounts and
commissions. An additional $340,129,950 aggregate principal amount at maturity
of the Notes is subject to an over-allotment option granted to the Underwriters
in the Underwriting Agreement.
The Notes are being issued pursuant to an Indenture to be dated as of
December 6, 1999 between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee") (form of filed herewith as Exhibit 4.5), as supplemented
and amended by a Supplemental Indenture No. 1 to be dated as of December 6, 1999
(form of filed herewith as Exhibit 4.7).
In order to provide for the eligibility of the Trustee under the Trust
Indenture Act of 1939, the Trustee has executed a Statement of Eligibility (form
of filed herewith as Exhibit 25.1).
Item 7. Financial Information, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit
No. Description
1.1 Underwriting Agreement dated as of December 1, 1999 by and among the
Company and Salomon Smith Barney Inc. and Morgan Stanley & Co.
Incorporated, as representatives of the several underwriters listed on
Schedule II thereto.
4.5 Form of Indenture to be dated as of December 6, 1999, between the
Company and State Street Bank and Trust Company, as trustee.
4.7 Form of Supplemental Indenture No. 1 to be dated as of December 6,
1999 between the Company and State Street Bank and Trust Company, as
trustee.
25.1 Form T-1, Statement of Eligibility and Qualification of Trustee under
the Trust Indenture Act of 1939.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICA ONLINE, INC.
By: /s/Raymond G. Murphy
Name: Raymond G. Murphy
Title: Senior Vice President and Treasurer
Dated: December 2, 1999
Exhibit Index
Exhibit
No. Desscription
1.1 Underwriting Agreement dated as of December 1, 1999 by and among the
Company and Salomon Smith Barney Inc. and Morgan Stanley & Co.
Incorporated, as representatives of the several underwriters listed on
Schedule II thereto.
4.5 Form of Indenture to be dated as of December 6, 1999 between the
Company and State Street Bank and Trust Company, as trustee.
4.7 Form of Supplemental Indenture No. 1 to be dated as of December 6,
1999 between the Company and State Street Bank and Trust Company, as
trustee.
25.1 Form T-1, Statement of Eligibility and Qualification of Trustee under
the Trust Indenture Act of 1939.
Form of Underwriting Agreement
America Online, Inc.
Convertible Subordinated Notes Due 2019
Underwriting Agreement
New York, New York
December 1, 1999
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated,
as Representatives of the several Underwriters
named in Schedule II hereto,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
America Online, Inc., a corporation organized under the laws
of Delaware (the "Company"), proposes to sell to the several underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as Representatives, its Convertible Subordinated Notes Due 2019, to
be issued under an indenture to be dated as of December 6, 1999, as supplemented
by Supplemental Indenture No. 1 to be dated as of December 6, 1999
(collectively, the "Indenture"), between the Company and State Street Bank and
Trust Company, as trustee (the "Trustee"), in the aggregate principal amount at
maturity identified in Schedule II hereto (said Convertible Subordinated Notes
Due 2019 to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase Convertible Subordinated Notes Due 2019 with
an aggregate principal amount at maturity of up to the aggregate principal
amount set forth in Schedule I hereto to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). To the extent there are no
additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission the Registration
Statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities and the shares of Common Stock issuable upon
conversion of the Securities. The Registration Statement has become effective;
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission. The Company may have filed
one or more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next file with
the Commission the Final Prospectus in accordance with Rules 415 and 424(b). As
filed, such Final Prospectus shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act, and incorporated by reference in the Final Prospectus,
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder; (ii)
on the Effective Date, the Registration Statement did or will, and when the
Final Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein) and on any date on which Option
Securities are to be purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules thereunder;
(iii) on the Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; (iv) on the Effective Date,
on the Closing Date and on any settlement date the Indenture did and will comply
in all material respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and (v) on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
representations and warranties set forth in this paragraph do not apply to the
information contained in the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Final Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Final Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly
or indirectly by the Company (excepting Digital City, Inc., which is not wholly
owned by the Company), free and clear of all liens, encumbrances, equities or
claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized and, assuming
due authorization, execution and delivery thereof by the Trustee, when executed
and delivered by the Company, will constitute a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity); the
Securities have been duly authorized, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters, will have been duly executed and delivered by the Company and
will constitute the legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity) and will be convertible into Common Stock in accordance
with their terms.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained or incorporated by reference
in the Final Prospectus.
(g) The shares of Common Stock outstanding have been duly
authorized and are validly issued, fully paid and non-assessable.
(h) The shares of Common Stock initially issuable upon
conversion of the Securities when issued upon conversion against payment of the
conversion price and in accordance with the terms of the Indenture and the
Securities, will be validly issued, fully paid and nonassessable; the Board of
Directors of the Company has duly and validly adopted resolutions reserving such
shares of Common Stock for issuance upon conversion; and the holders of the
outstanding shares of capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities or the shares of the
Common Stock issuable upon conversion thereof; and, except as set forth in the
Final Prospectus or otherwise disclosed in writing to the Underwriters, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding.
(i) (1) The rights to be attached to the shares of Common
Stock initially issuable upon conversion of the Securities have been duly
authorized and, when such shares of Common Stock have been duly and validly
issued in accordance with the terms of this Agreement, will be validly issued.
(2) The rights attached to the shares of Common Stock
outstanding prior to the issuance of the shares of Common Stock issuable upon
conversion of the Securities have been duly authorized and are validly issued.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except such
as may be required by the Act and the applicable rules and regulations of the
Commission thereunder and the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Securities or the shares of Common
Stock into which they are convertible.
(k) There has not occurred any material adverse change, or any
development, which insofar as can reasonably be foreseen, involves a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Final Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or,
to the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Final Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Final Prospectus or to be filed
as exhibits to the Registration Statement that are not described or filed as
required.
(m) The Company and each of its subsidiaries have all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and have made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
their respective properties and assets and to conduct their business in the
manner described in the Final Prospectus, except to the extent that the failure
to obtain such consents, authorizations, approvals, orders, certificates and
permits or make such declarations or filings would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(n) Each Preliminary Prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act and the applicable rules and regulations of the
Commission thereunder.
(o) The Company is not and, after giving effect to the
offering and the sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(p) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, the "Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(q) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to include any securities with the Securities registered pursuant to the
Registration Statement.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly,
Option Securities with an aggregate principal amount at maturity of up to the
aggregate principal amount set forth in Schedule I hereto at the same purchase
price per Security as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of this Agreement upon written or telegraphic notice
by the Representatives to the Company setting forth the aggregate principal
amount at maturity of the Option Securities as to which the several Underwriters
are exercising the option and the settlement date. The aggregate principal
amount at maturity of the Option Securities to be purchased by each Underwriter
shall be the same percentage of the total aggregate principal amount at maturity
of the Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
(c) Each Underwriter represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 of the
United Kingdom, (ii) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 of the United Kingdom with respect
to anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom the
document may otherwise lawfully be issued or passed on.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to an account specified by the Company. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
388 Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement, unless the Company has
furnished you a copy for your review prior to filing and will not,
unless the Company has been advised by legal counsel that such filing
is required by law, file any such proposed amendment or supplement to
which you reasonably object in a timely manner. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of Salomon Smith
Barney Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company, directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, of any debt securities issued or guaranteed by the Company (other
than the Securities), any shares of capital stock of the Company or any
securities convertible or exercisable or exchangeable for such capital
securities (other than the Securities) or publicly announce an intention to
effect any such transaction, until the Business Day set forth on Schedule I
hereto; provided, however, that notwithstanding the foregoing, the Company may
(i) issue Common Stock, or grant options to purchase Common Stock or other
awards, in each case under its stock or bonus plans, to employees and directors
of the Company, (ii) file Form S-8 Registration Statements relating to, and
issue common stock of the Company pursuant to, restricted stock agreements with
employees and employee stock option plans of the Company or its subsidiaries,
(iii) file Form S-4 Registration Statements relating to, and issue common stock
pursuant to, mergers with, or acquisitions of, other entities by the Company,
and (iv) announce its intentions with regard to such stock option plans,
restricted stock agreements, mergers and/or acquisitions.
(g) The Company will reserve and keep available at all times,
free of preemptive rights, the full number of shares of Common Stock
issuable upon conversion of the Securities.
(h) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Company, to have
furnished to the Representatives their opinion, dated the Closing Date
and addressed to the Representatives, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus;
(ii) the shares of Common Stock initially issuable
upon conversion of the Securities have been duly and validly
authorized and, when issued upon conversion against payment of
the conversion price and in accordance with the provisions of
the Indenture and the Securities, will be validly issued,
fully paid and nonassessable;
(iii) the rights to be attached to the shares of
Common Stock initially issuable upon conversion of the
Securities have been duly authorized and, when the Securities
are converted into shares of Common Stock in accordance with
the terms of the Indenture and the Securities, will be validly
issued;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and, assuming due execution by the Trustee,
constitutes a legal, valid and binding instrument, enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws affecting creditors' rights generally from time to
time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered
in a proceeding in equity or at law, all such factors being
collectively referred to as "Creditors' Rights and Equitable
Principles"); and the Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture, subject to Creditor's Rights
and Equitable Principles, and will be convertible into Common
Stock in accordance with their terms;
(vi) the statements (A) in the Final Prospectus under
the captions "Description of Debt Securities", "Description of
Common Stock", "Description of Notes" and "Federal Income Tax
Considerations" and (B) in the Registration Statement in Item
15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein;
(vii) based solely upon such counsel's participation
in the preparation of the Registration Statement and Final
Prospectus and review and discussion of the contents thereof
with Brenda C. Karickhoff, Associate General Counsel of the
Company, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Final Prospectus and are not so described or
of any statutes, regulations, contracts or other documents
that are required to be described in the Registration
Statement or the Final Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed
as required;
(viii) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended; and
(ix) such counsel (A) is of the opinion that each
document filed pursuant to the Exchange Act and incorporated
by reference in the Registration Statement and the Final
Prospectus (except for financial statements and schedules and
other financial and statistical information included therein
as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations
of the Commission thereunder and (B) is of the opinion that
the Registration Statement and Final Prospectus (except for
financial statements and schedules and other financial and
statistical information included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Act, the Exchange Act, the Trust
Indenture Act and the respective rules and regulations
thereunder.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing has
come to the attention of such counsel which has caused them to believe
that the Registration Statement or the Final Prospectus included
therein, as of the time the Registration Statement became effective or
on the date of this Agreement, contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
the Final Prospectus, as amended or supplemented, as of the Closing
Date, contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (except that such counsel need express no view as to
financial statements and schedules and other financial and statistical
information included therein). With respect to such statements, Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. may state that such
statements are based solely upon (i) their participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto, (ii) their limited involvement in
the preparation of the documents incorporated therein by reference and
(iii) their review and discussion of the contents of the Registration
Statement and Final Prospectus with certain representatives of the
Company, but is without independent check or verification.
(c) The Company shall have requested and caused either the
Senior Vice President and General Counsel or the Senior Vice President,
Legal, of the Company to have furnished to the Representatives his or
her opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which
requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may
be, and to operate its property and to conduct its business as
described in the Final Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iv) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; and the Securities
conform in all material respects to the description thereof
contained in the Final Prospectus; the outstanding shares of
Common Stock have been duly and validly authorized and are
fully paid and nonassessable; the shares of Common Stock
initially issuable upon conversion of the Securities have been
duly and validly authorized and, when issued upon conversion
against payment of the conversion price and in accordance with
the provisions of the Indenture and the Securities, will be
validly issued, fully paid and nonassessable; the Board of
Directors of the Company has duly and validly adopted
resolutions reserving such shares of Common Stock for issuance
upon conversion; the holders of the outstanding shares of
capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities or
the shares of Common Stock issuable upon conversion thereof;
and, except as set forth in the Final Prospectus or otherwise
disclosed in writing to the Underwriters, no options, warrants
or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(v) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law, all
such factors being collectively referred to as "Creditors'
Rights and Equitable Principles"); and the Securities have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture, subject to Creditors' Rights and Equitable
Principles, and will be convertible into Common Stock in
accordance with their terms;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement and the Indenture will not contravene (A) the
certificate of incorporation or by-laws of the Company or (B)
any agreement or other instrument known to such counsel to be
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or (C) any judgment, order or decree known to such
counsel to be applicable to the Company of any governmental
body, agency or court having jurisdiction over the Company or
any subsidiary that is material for the Company and its
subsidiaries, taken as a whole; and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as may be required by the Act and the applicable rules
and regulations of the Commission thereunder and the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(vii) the statements (A) in the Final Prospectus
under the captions "Risk Factors", "Description of Debt
Securities", "Description of Common Stock", and "Description
of Notes", (B) in "Item 3, Legal Proceedings" of the Company's
most recent report on Form 10-K incorporated by reference in
the Final Prospectus, (C) in "Item 1, Legal Proceedings" of
Part II of the Company's quarterly reports on Form l0-Q, filed
since such annual report, and (D) in the Company's
Registration Statement on Form 8-A registering the Company's
Common Stock (including any amendments and reports filed for
the purpose of updating such Registration Statement) setting
forth a description of the Company's capital stock, in each
case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein,
fairly present the information required with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(viii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Final Prospectus and are not
so described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Final Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the
attention of such counsel which has caused such counsel to believe that
the Registration Statement or the Final Prospectus included therein, as
of the time the Registration Statement became effective or on the date
of this Agreement, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the Final
Prospectus, as amended or supplemented, as of the Closing Date,
contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(except that such counsel need express no view as to financial
statements and schedules and other financial and statistical
information included or incorporated by reference therein). In
addition, such opinion shall also include a statement that nothing has
come to the attention of such counsel which has caused such counsel to
believe that the Company and its subsidiaries are not in compliance
with all applicable Environmental Laws, non-compliance with which would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole. With respect to such statements, such counsel may
state that the foregoing statements are based upon his or her
participation in the preparation of the Registration Statement and
Final Prospectus and any amendments or supplements thereto and
documents incorporated therein by reference and review and discussion
of the contents thereof, but is without independent check or
verification except as specified.
(d) The Representatives shall have received from Cleary,
Gottlieb, Steen & Hamilton, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters (which may refer to letters previously
delivered to the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the 3-month
period ended September 30, 1999, and as at September 30, 1999, in
accordance with Statement on Auditing Standards No. 71, and stating in
effect, except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
3-month period ended September 30, 1999 and as at September
30, 1999 carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and the Compensation and Management
Development Committee and the Audit Committee of the Company;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to September 30, 1999, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements
included in quarterly reports on Form 10-Q under the
Exchange Act; or that said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus;
(2) with respect to the period subsequent to
September 30, 1999, there were any changes, at a
specified date not more than five days prior to the
date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the stockholders' equity of
the Company as compared with the amounts shown on the
September 30, 1999 consolidated balance sheet
included or incorporated by reference in the
Registration Statement and the Final Prospectus, or
for the period from September 30, 1999 to such
specified date there were any decreases, as compared
with the corresponding period in the preceding
quarter, in net revenues or income before income
taxes or in total or per share amounts of net income
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Capitalization" and "Ratio of Earnings to
Fixed Charges" in the Final Prospectus, the information
included or incorporated by reference in Items 1, 2, 6, 7 and
11 of the Company's Annual Report on Form 10-K, incorporated
by reference in the Registration Statement and the Final
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(i) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(j) The "lock-up" agreements, between you and executive
officers and directors of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cleary, Gottlieb, Steen & Hamilton, counsel for
the Underwriters, at One Liberty Plaza, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Salomon Smith Barney on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth (i) in the last paragraph of the cover page regarding delivery of the
Securities, (ii) under the heading "Underwriting", the list of Underwriters and
their respective participation in the sale of the Securities, (iii) in the final
paragraph on the inside front cover, (iv) in the final paragraph under the
heading "Underwriting" and (v) in the paragraphs related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. It is understood,
however, that the Company shall, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons,
which firm shall be designated in writing by Salomon Smith Barney.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining non-defaulting Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in Schedule
II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Salomon Smith Barney Inc. General Counsel
(fax no.: (212) 816-7912) and confirmed to the General Counsel, Salomon Smith
Barney Inc., at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to General Counsel, (703) 265-1105 and confirmed to it at America
Online, Inc., 22000 AOL Way, Dulles, Virginia 20166-9323, attention of the Legal
Department.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's common stock, par
value $.01 per share.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Significant Subsidiary" shall mean each subsidiary of the
Company that as of the date of this Agreement is a "Significant
Subsidiary" for purposes of Rule 1-02 of regulation S-X under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
America Online, Inc.
By:/s/Raymond G. Murphy
Name:Raymond G. Murphy
Title: Senior Vice President, Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
By: Salomon Smith Barney Inc.
By:/s/Alan M. Rifkin
Name:Alan M. Rifkin
Title:Vice President
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated December 1, 1999
Registration Statement No. 333-79489
Representatives: Salomon Smith Barney Inc.
Morgan Stanley & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: Convertible Subordinated Notes Due 2019
Aggregate principal amount at maturity of the Underwritten Securities:
$2,267,533,000
Aggregate principal amount at maturity of the Option Securities:
$340,129,950
Public offering price: $551.26 per Security
Purchase price to Underwriters (include accrued interest or
amortization, if any): $537.478 per Security
Sinking fund provisions: None
Redemption provisions: On or after December 6, 2002 and before December
6, 2004, the Securities are redeemable in whole but not in part for cash if the
closing price of the Common Stock on the New York Stock Exchange is greater than
150% of the conversion price for the Securities for at least 20 trading days in
any consecutive 30-trading day period. On or after December 6, 2004, the
Securities are redeemable for cash, in whole or in part, at any time and from
time to time. The redemption price will be equal to the issue price of the
Securities plus the accrued original issue discount to the date of redemption.
Closing Date, Time and Location: December 6, 1999 at 10:00 a.m. at
Cleary, Gottlieb, Steen & Hamilton, One Liberty Plaza, New York, New York
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company and other securities referred to
in Section 5(f) without the consent of the Representatives:
December 31, 1999
SCHEDULE II
Principal Amount
of Underwritten Securities
Underwriters to be Purchased
Salomon Smith Barney Inc. $793,637,000
Morgan Stanley & Co. Incorporated $793,637,000
Goldman, Sachs & Co. $226,753,000
Lehman Brothers Inc. $226,753,000
Bear, Stearns & Co. Inc. $226,753,000
Total................... $2,267,533,000
=-------------
INDENTURE
between
AMERICA ONLINE, INC.
and
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
Dated as of December 6, 1999
Providing for Issuance of
Debt Securities in Series
Reconciliation and tie between Indenture, dated as of December 6, 1999, and the
Trust Indenture Act of 1939, as amended.
Trust Indenture Act of 1939 Section Indenture Section
- ----------------------------------- -----------------
310 (a) (1) 6.11
(a) (2) 6.11
(a) (3) TIA
(a) (4) Not Applicable
(a) (5) TIA
(b) 6.9; 6.11; TIA
311 (a) TIA
(b) TIA
312 (a) 6.7
(b) TIA
(c) TIA
313 (a) 6.6; TIA
(b) TIA
(c) 6.6; TIA
(d) 6.6
314 (a) 9.6; 9.7; TIA
(b) Not Applicable
(c) (1) 1.2
(c) (2) 1.2
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.2
(f) TIA
315 (a) TIA
(b) 6.5
(c) 6.1
(d) (1) TIA
(d) (2) TIA
(d) (3) TIA
(e) TIA
316 (a) (1) (A) 5.8
(a) (1) (B) 5.7
(b) 5.2; 5.10
(c) TIA
317 (a) (1) 5.3
(a) (2) 5.4
(b) 9.3
318 (a) 1.11
(b) TIA
(c) 1.11; TIA
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
1.1. DEFINITIONS.........................................................1
1.2. COMPLIANCE CERTIFICATES AND OPINIONS................................8
1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..............................9
1.4. ACTS OF HOLDERS....................................................10
1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY..............................12
1.6. NOTICE TO HOLDERS; WAIVER..........................................12
1.7. HEADINGS AND TABLE OF CONTENTS.....................................13
1.8. SUCCESSOR AND ASSIGNS..............................................13
1.9. SEPARABILITY.......................................................13
1.10. BENEFITS OF INDENTURE.............................................13
1.11. GOVERNING LAW.....................................................13
1.12. LEGAL HOLIDAYS....................................................14
1.13. NO RECOURSE AGAINST OTHERS........................................14
ARTICLE II SECURITY FORMS.................................................14
2.1. FORMS GENERALLY....................................................14
2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION....................15
2.3. SECURITIES IN GLOBAL FORM..........................................15
2.4. FORM OF LEGEND FOR SECURITIES IN GLOBAL FORM.......................16
ARTICLE III THE SECURITIES................................................16
3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES...............................16
3.2. DENOMINATIONS......................................................21
3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.....................21
3.4. TEMPORARY SECURITIES...............................................24
3.5. REGISTRATION, TRANSFER AND EXCHANGE................................25
3.6. REPLACEMENT SECURITIES.............................................28
3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.....................30
3.8. PERSONS DEEMED OWNERS..............................................31
3.9. CANCELLATION.......................................................32
3.10. COMPUTATION OF INTEREST...........................................32
3.11. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES...........32
3.12. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT................37
3.13. WIRE TRANSFERS...................................................38
3.14. CUSIP NUMBERS.....................................................38
ARTICLE IV SATISFACTION, DISCHARGE AND DEFEASANCE.........................38
4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE INDENTURE...........38
4.2. APPLICATION OF TRUST FUNDS.........................................40
4.3. APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE...........................40
4.4. DEFEASANCE AND DISCHARGE...........................................40
4.5. COVENANT DEFEASANCE................................................41
4.6. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE....................41
4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST.....43
4.8. REPAYMENT TO COMPANY...............................................44
4.9. INDEMNITY FOR GOVERNMENT OBLIGATIONS...............................44
ARTICLE V DEFAULTS AND REMEDIES...........................................44
5.1. EVENTS OF DEFAULT..................................................44
5.2. ACCELERATION; RESCISSION AND ANNULMENT.............................45
5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE....46
5.4. TRUSTEE MAY FILE PROOFS OF CLAIM...................................47
5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES........47
5.6. DELAY OR OMISSION NOT WAIVER.......................................47
5.7. WAIVER OF PAST DEFAULTS............................................47
5.8. CONTROL BY MAJORITY................................................47
5.9. LIMITATION ON SUITS BY HOLDERS.....................................47
5.10. RIGHTS OF HOLDERS TO RECEIVE PAYMENT..............................48
5.11. APPLICATION OF MONEY COLLECTED....................................48
5.12. RESTORATION OF RIGHTS AND REMEDIES................................50
5.13. RIGHTS AND REMEDIES CUMULATIVE....................................50
5.14. WAIVER OF STAY, EXTENSION OR USURY LAWS...........................50
ARTICLE VI THE TRUSTEE....................................................50
6.1. RIGHTS OF TRUSTEE..................................................50
6.2. TRUSTEE MAY HOLD SECURITIES........................................52
6.3. MONEY HELD IN TRUST................................................52
6.4. TRUSTEE'S DISCLAIMER...............................................53
6.5. NOTICE OF DEFAULTS.................................................53
6.6. REPORTS BY TRUSTEE TO HOLDERS......................................53
6.7. SECURITY HOLDER LISTS..............................................53
6.8. COMPENSATION AND INDEMNITY.........................................54
6.9. REPLACEMENT OF TRUSTEE.............................................55
6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................56
6.11. ELIGIBILITY; DISQUALIFICATION.....................................57
6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.......58
6.13. APPOINTMENT OF AUTHENTICATING AGENT...............................58
ARTICLE VII CONSOLIDATION, MERGER OR SALE BY THE COMPANY..................59
7.1. CONSOLIDATION, MERGER OR SALE OF ASSETS PERMITTED..................59
ARTICLE VIII SUPPLEMENTAL INDENTURES......................................60
8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.................60
8.2. WITH CONSENT OF HOLDERS............................................62
8.3. COMPLIANCE WITH TRUST INDENTURE ACT................................63
8.4. EXECUTION OF SUPPLEMENTAL INDENTURES...............................63
8.5. EFFECT OF SUPPLEMENTAL INDENTURES..................................63
8.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.................64
ARTICLE IX COVENANTS......................................................64
9.1. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST................64
9.2. MAINTENANCE OF OFFICE OR AGENCY....................................64
9.3. MONEY FOR SECURITIES TO BE HELD IN TRUST; UNCLAIMED MONEY..........65
9.4. CORPORATE EXISTENCE................................................67
9.5. MAINTENANCE OF PROPERTIES..........................................67
9.6. REPORTS BY THE COMPANY.............................................67
9.7. ANNUAL REVIEW CERTIFICATE..........................................68
PAYMENT OF TAXES AND OTHER CLAIMS.......................................68
ARTICLE X REDEMPTION......................................................69
10.1. APPLICABILITY OF ARTICLE..........................................69
10.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.............................69
10.3. SELECTION OF SECURITIES TO BE REDEEMED............................69
10.4. NOTICE OF REDEMPTION..............................................70
10.5. DEPOSIT OF REDEMPTION PRICE.......................................71
10.6. SECURITIES PAYABLE ON REDEMPTION DATE.............................73
10.7. SECURITIES REDEEMED IN PART.......................................74
ARTICLE XI SINKING FUNDS..................................................74
11.1. APPLICABILITY OF ARTICLE..........................................74
11.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.............74
11.3. REDEMPTION OF SECURITIES FOR SINKING FUND.........................74
INDENTURE, dated as of December 6, 1999, between AMERICA ONLINE, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), and State Street Bank and Trust Company, Trustee, a
Massachusetts trust company organized and existing under the laws of the
Commonwealth of Massachusetts (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness ("Securities") to be issued in one or more
series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
series thereof:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section
or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.13.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holiday. Whenever successive publications in an Authorized
Newspaper are required hereunder they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company, the Executive Committee or any other duly authorized committee thereof.
"Board Resolution" means a copy of one or more resolutions of the Board
of Directors, certified by the Corporate Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of the certificate, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close, except
as may otherwise be provided in the form of Security of any particular series
pursuant to the provisions of this Indenture.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this 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.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter means such successors.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by the Chairman of the Board,
any Vice Chairman of the Board, the President, any Vice President or any Senior
Vice President, and by the Treasurer, any Assistant Treasurer, the Corporate
Secretary or any Assistant Secretary of the Company and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 2 Avenue de
Lafayette, Boston, Massachusetts 02111-1724 Attention: Corporate Trust
Department.
"Currency unit", for all purposes of this Indenture, shall include any
composite currency.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default.
"Depository", when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.1 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States as at
the time of payment is legal tender for the payment of public and private debts.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, for the payment of
which the full faith and credit of the United States or such other government is
pledged (whether by guaranty or otherwise), which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name such Registered Security is registered on the Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of the
particular series of Securities established as contemplated by Section 3.1;
provided, however, that if at any time more than one Person is acting as Trustee
under this Indenture due to the appointment of one or more separate Trustees for
any one or more separate series of Securities, "Indenture" shall mean, with
respect to such series of Securities for which any 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 3.1, 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; provided
further that in the event that this indenture is supplemented or amended by one
or more indentures supplemental hereto which are only applicable to certain
series of Securities, the term "Indenture" for a particular series of Securities
shall only include the supplemental indentures applicable thereto.
"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.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Treasurer or the Corporate Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, any Executive Vice President or any Senior Vice
President, signing alone, or by any Vice President signing together with the
Corporate Secretary, any Assistant Secretary, the Treasurer, or any Assistant
Treasurer of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be (a) any senior attorney employed by the Company, (b) Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. or (c) other counsel designated by the Company
and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or Government Obligations in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and
any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article IV; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that unless otherwise provided with respect to any Securities
of any series pursuant to Section 3.1, in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other purpose,
and for the purpose of making the calculations required by section 313 of the
Trust Indenture Act or are present at a meeting of Holders for quorum purposes,
(w) the principal amount of any Original Issue Discount Securities 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 5.2, (x) the principal amount of any
Security denominated in one or more Foreign Currencies or currency units that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by the Company as
set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent, determined as of such date of original issuance, of the
amount determined as provided in clause (w) above) of such Security, (y) unless
otherwise provided with respect to such Security pursuant to Section 3.1, 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, and (z) 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, or determination as to the presence of a quorum, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, 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", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest and any other payments on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1, which date shall be, unless otherwise
specified pursuant to Section 3.1, the fifteenth day preceding such Interest
Payment Date, whether or not such day shall be a Business Day.
"Responsible Officer", when used with respect to the Trustee, shall
mean any senior vice president, vice president, any assistant vice president or
assistant secretary working in its corporate trust department and assigned
responsibility for this engagement, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, working in its corporate trust
department and assigned responsibility for this engagement, or to whom any
corporate trust matter relating to the Indenture or the Securities is referred
because of his knowledge of and familiarity with a particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"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 in 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.
"Subsidiary" means any Person of which the Company at the time owns or
controls, directly or indirectly, more than 50% of the shares of outstanding
stock or other equity interests having general voting power under ordinary
circumstances to elect a majority of the Board of Directors, managers or
trustees, as the case may be, of such Person (irrespective of whether or not at
the time stock of any other class or classes or other equity interests of such
corporation shall have or might have voting power by reason of the happening of
any contingency).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "Vice President".
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, an individual citizen
or resident of the United States, a corporation created or organized in or under
the laws of the United States, any State thereof or the District of Columbia, or
a partnership, estate or trust treated as a domestic partnership, estate or
trust for United States federal income tax purposes.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term Section
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Claims" 6.8(b)
"Component Currency" 3.11(h)
"Conversion Date" 3.11(d)
"Conversion Event" 3.11(h)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.11(h)
"Euro" 3.11(h)
"Event of Default" 5.1
"Exchange Rate Agent" 3.11(h)
"Exchange Rate Officer's
Certificate" 3.11(h)
"Foreign Currency" 3.11(h)
"Market Exchange Rate" 3.11(h)
"Register" 3.5
"Registrar" 3.5
"Specified Amount" 3.11(h)
"Valuation Date" 3.11(c)
Section 1.2. 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 Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
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. Each such certificate or opinion shall be given in the form of an
Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.3 and 9.7) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or
covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 1.3. 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 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 as to such matters are
erroneous.
Any certificate or opinion of an officer of the Company or of counsel
may be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinions or representations as to such accounting matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, 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 depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register (as defined below).
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) If the Company shall solicit from the Holders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, fix in advance a record date for the
determination of Holders of such series entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. 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 such series of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities of such series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities of such
series shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless taken on or prior to the applicable Expiration Date (as
defined below) by Holders of the requisite amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Notes in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section 1.4, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Trustee, and to each Holder of Securities of the applicable
series in the manner set forth in Section 1.6 on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any part of such principal
amount.
(h) The Company and the Trustee may make reasonable rules for
action by or at a meeting of Holders.
Section 1.5. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee to the attention of its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the
Company addressed to it at America Online, Inc.,
22000 AOL Way, Dulles, VA 20166 or at any other
address previously furnished in writing to the
Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein or in the terms of such
Securities expressly provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address as it
appears in the Register, within the time prescribed for the giving of such
notice and, (ii) if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be sufficiently given (unless
otherwise herein or in the terms of such Bearer Securities expressly provided)
if published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated by Section
3.1.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. In any case where notice
is given to Holders by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee (such
approval not to be unreasonably withheld) shall constitute a sufficient
notification for every purpose hereunder. If it is impossible or, in the opinion
of the Trustee, impracticable to give any notice by publication in the manner
herein required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
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 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 1.7. Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successor and assigns, whether so
expressed or not.
Any act or proceeding that is required or permitted by any provision of
this Indenture and that is authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done and performed
with like force and effect by the like board, committee or officer of any
corporation that shall at the time be the successor or assign of the Company.
Section 1.9. Separability. In case any provision of this Indenture or
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. UNLESS OTHERWISE PROVIDED WITH RESPECT TO
ANY SECURITIES OF ANY SERIES PURSUANT TO SECTION 3.1, THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture is subject to
the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required by the
Trust Indenture Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified,
or to be excluded, as the case may be, whether or not such provision of this
Indenture refers expressly to such provision of the Trust Indenture Act.
Section 1.12. Legal Holidays. Unless otherwise provided with respect to
any Security or Securities pursuant to Section 3.1, in any case where any
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity or other payment date of any Security shall not be a
Business Day at any Place of Payment, then, notwithstanding any other provision
of this Indenture or any Security or coupon, payment of principal, premium, if
any or interest or other payments 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 such date; provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity or other payment date, as the case may be.
Section 1.13. No Recourse Against Others. No past, present or future
director, officer, employee, agent, member, manager, trustee or stockholder, as
such, of the Company or any successor Person shall have any liability for any
obligations of the Company or any successor Person, either directly or through
the Company or any successor Person, under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation, whether by virtue of any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise. By accepting a Security, each Holder agrees to the
provisions of this Section 1.13 and waives and releases all such liability. Such
waiver and release shall be part of the consideration for the issue of the
Securities.
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form 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 any applicable law, rule or regulation or with the rules
or usage of any securities exchange or Depository therefor or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. If temporary Securities of any series are issued as permitted
by Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and coupons, if any, of any
series are established by, or by action taken pursuant to, a Board Resolution, a
copy of the Board Resolution together with an appropriate record of any such
action taken pursuant thereto, including a copy of the approved form of
Securities or coupons, if any, shall be certified by the Corporate Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be typeset,
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner or medium, all as determined by the officers executing such
Securities and coupons, if any, as evidenced by their execution of such
Securities and coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication. Subject
to Section 6.13, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the [Securities] [of the series designated herein and]
referred to in the within-mentioned Indenture.
__________________________, as Trustee
Dated: By:
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Holders, of Outstanding Securities represented
thereby, shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 3.3 or 3.4. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, 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. 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 1.2
hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
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 1.2 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 paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.
Section 2.4. Form of Legend for Securities in Global Form. Unless
otherwise provided with respect to any Securities of any series pursuant to
Section 3.1 or required by the Depository, any Security of such series in global
form authenticated and delivered hereunder shall bear a legend in substantially
the following form:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. Unless and
until it is exchanged in whole or in part for Securities in
certificated form, this Security may not be transferred except
as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such
successor Depository. Every Security authenticated and
delivered upon registration of, or in exchange for, or in lieu
of, this Security will be in global form, subject to the
foregoing.
ARTICLE III
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities which may be authenticated, delivered and
outstanding under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series
(which title 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 which
may be authenticated, delivered and
outstanding under this Indenture (which
limit shall not pertain to Securities
authenticated and delivered upon
registration of transfer of, or in exchange
for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6,
8.6, or 10.7 and except for any Securities
which, pursuant to Section 3.3, are deemed
never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal of
and premium, if any, on the Securities of
the series is payable or the method of
determination and/or extension of such date
or dates; and the amount or amounts of such
principal and premium, if any, payments or
the method of determination thereof;
(4) the rate or rates (which may be fixed or
variable) at which the Securities of the
series shall bear interest, if any, or the
method of calculating and/or resetting such
rate or rates of interest, 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 any such interest shall be payable or
the method by which such dates will be
determined and, with respect to Registered
Securities, the Regular Record Date, if any,
for the interest payable on any Registered
Security on any Interest Payment Date and
the basis upon which interest shall be
calculated if other than upon a 360-day year
of twelve 30-day months;
(5) the place or places where the principal of,
premium, if any, and interest, if any, on
Securities of the series shall be payable;
(6) the period or periods within which, the
price or prices at which, the currency or
currencies (including currency units) in
which, and the other terms and conditions
upon which, Securities of the series may be
redeemed, in whole or in part, at the option
of the Company or otherwise, and, if other
than as provided in Section 10.3, the manner
in which the particular Securities of such
series (if less than all Securities of such
series are to be redeemed) are to be
selected for redemption;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series
pursuant to any sinking fund or analogous
provisions or upon the happening of a
specified event or at the option of a Holder
thereof and the period or periods within
which, the price or prices at which, and the
other terms and conditions upon which,
Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant
to such obligation and provisions for the
remarketing of such series;
(8) if other than denominations of $1,000 and
any integral multiple thereof, for
Registered Securities, and if other than
denominations of $5,000 and any integral
multiple thereof, for Bearer Securities, the
denominations in which Securities of the
series shall be issuable;
(9) if other than Dollars, the currency or
currencies (including currency unit or
units) in which the principal of, premium,
if any, and interest, if any, or other
payments, if any, on the Securities of the
series shall be payable, or in which the
Securities of the series shall be
denominated, and the particular provisions
applicable thereto in accordance with, in
addition to, or in lieu of the provisions of
Section 3.11;
(10) the terms, if any, upon which Securities of
the series may be convertible into or
exchanged for other Securities of the
Company and the terms and conditions upon
which the conversion or exchange shall be
effected, including the initial conversion
or exchange price or rate, the conversion or
exchange period, and any other additional
provisions;
(11) if the payments of principal of, premium, if
any, or interest, if any, or other payments,
if any, on the Securities of the series are
to be made, at the election of the Company
or a Holder, in a currency or currencies
(including currency unit or units) other
than that in which such Securities are
denominated or designated to be payable, the
currency or currencies (including currency
unit or units) in which such payments are to
be made, the terms and conditions of such
payments and the manner in which the
exchange rate with respect to such payments
shall be determined, and the particular
provisions applicable thereto in accordance
with, in addition to, or in lieu of the
provisions of Section 3.11;
(12) if the amount of payments of principal of,
premium, if any, and interest, if any, or
other payments, if any, on the Securities of
the series shall be determined with
reference to an index, formula or other
method (which index, formula or method may
be based, without limitation, on the price
of one or more commodities, derivatives or
securities; one or more securities,
derivatives or commodities exchange indices
or other indices; a currency or currencies
(including currency unit or units) other
than that in which the Securities of the
series are denominated or designated to be
payable; or any other variable or the
relationship between any variables or
combination of variables), the index,
formula or other method by which such
amounts shall be determined;
(13) if other than the principal amount thereof,
the portion of the principal amount of such
Securities of the series or other amount
which shall be payable upon declaration of
acceleration thereof pursuant to Section 5.2
or provable in bankruptcy or the method by
which such portion or amount shall be
determined;
(14) if other than as provided in Section 3.7,
the Person to whom any interest on any
Registered Security of the series shall be
payable and the manner in which, or the
Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(15) if the principal amount payable at the
Maturity of any Securities of the series
will not be determinable as of one or more
dates prior to Maturity, the amount which
shall be deemed to be the principal amount
of such Securities as of any such date
hereunder or thereunder, or, if other than
as provided in the definition of the term
"Outstanding", which shall be deemed to be
Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the
principal amount shall be determined) and,
if necessary, the manner of determining the
equivalent thereof in U.S. currency;
(16) provisions, if any, granting special rights
to the Holders of Securities of the series
upon the occurrence of such events as may be
specified;
(17) the applicability of or any deletions from,
modifications of or additions to the Events
of Default set forth in Section 5.1 or
covenants of the Company set forth in
Article IX pertaining to the Securities of
the series;
(18) under what circumstances, if any, the
Company will pay additional amounts on the
Securities of that series held by a Person
who is not a U.S. Person in respect of taxes
or similar charges withheld or deducted and,
if so, whether the Company will have the
option to redeem such Securities rather than
pay such additional amounts (and the terms
of any such option);
(19) whether Securities of the series shall be
issuable as Registered Securities or Bearer
Securities (with or without interest
coupons), or both, and any restrictions
applicable to the offering, sale or delivery
of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon
which Bearer Securities of a series may be
exchanged for Registered Securities of the
same series and vice versa;
(20) the date as of which any Bearer Securities
of the series and any temporary global
Security representing Outstanding Securities
of the series shall be dated if other than
the date of original issuance of the first
Security of the series to be issued;
(21) the forms of the Securities and coupons, if
any, of the series;
(22) any changes or additions to the provisions
provided in Article Four of this Indenture
pertaining to defeasance, including without
limitation, the exclusion of Section 4.4 or
4.5, or both, with respect to the Securities
of or within the series; or the
applicability, if any, to the Securities of
or within the series of such means of
defeasance or covenant defeasance other than
those provided in Sections 4.4 and 4.5 as
may be specified for the Securities and
coupons, if any, of such series, and
whether, for the purpose of any defeasance
or covenant defeasance pursuant to Section
4.4 or 4.5 or otherwise, the term
"Government Obligations" shall include
obligations referred to in the definition of
such term which are not obligations of the
United States or an agency or
instrumentality of the United States;
(23) if other than the Trustee, the identity
of the Registrar and any Paying Agent;
(24) any terms which may be related to warrants,
options or other rights to purchase and sell
securities issued by the Company in
connection with, or for the purchase of,
Securities of such series, including whether
and under what circumstances the Securities
of any series may be used toward the
exercise price of any such warrants, options
or other rights;
(25) the designation of the initial Exchange Rate
Agent, if any;
(26) whether any of the Securities of the series
shall be issued in whole or in part in
global form, and if so (i) the Depository
for such global Securities, (ii) the form of
any legend in addition to or in lieu of that
in Section 2.4 which shall be borne by such
global Securities, (iii) whether beneficial
owners of interests in any Securities of the
series in global form may exchange such
interests for certificated Securities of
such series and of like tenor of any
authorized form and denomination, and (iv)
if other than as provided in Section 3.5,
the circumstances under which any such
exchange may occur;
(27) the subordination, if any, of the Securities
of the series;
(28) if the Securities of the series will be
governed by, and the extent to which such
Securities will be governed by, any law
other than the laws of the state of New
York; and
(29) the terms, if any, of any guarantee of the
payment of principal, premium and interest
with respect to Securities of the series and
any corresponding changes to the provisions
of this Indenture as then in effect;
(30) the terms, if any, of the transfer,
mortgage, pledge or assignment as security
for the Securities of the series of any
properties, assets, moneys, proceeds,
securities or other collateral, including
whether certain provisions in the Trust
Indenture Act are applicable and any
corresponding changes to provisions of this
Indenture as then in effect;
(31) any other terms of the series, including any
terms which may be required by or advisable
under United States laws or regulations or
advisable (as determined by the Company) in
connection with the marketing of Securities
of the series.
(c) The terms applicable to the Securities of any one series
and coupons, if any, appertaining to any Bearer Securities of such series need
not be identical but may vary as may be provided (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
(e) Except as may be otherwise expressly provided in the
applicable Board Resolutions or supplemental indenture, as contemplated by this
Section 3.1, the Securities of any Series shall rank pari passu with the
Securities of each other Series.
Section 3.2. Denominations. Unless otherwise provided as contemplated
by Section 3.1, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,000 and any
integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by the Chairman of the Board, any
Vice Chairman of the Board, the President, any Vice President or any Senior Vice
President and by the Treasurer, any Assistant Treasurer, the Corporate Secretary
or any Assistant Secretary of the Company. The Company's seal shall be
reproduced on the Securities and shall be attested by the Corporate Secretary or
any Assistant Secretary. The signatures of any of these officers on the
Securities may be manual or facsimile. The coupons, if any, of Bearer Securities
shall bear the facsimile signature of the Chairman of the Board, any Vice
Chairman, the President, any Senior Vice President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company.
Securities and 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.
At any time and from time to time, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel substantially to the effect that,
(1) if the forms of such Securities and any coupons have
been established by or pursuant to a Board Resolution
as permitted by Section 2.1, such forms have been
established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities and any coupons have
been established by or pursuant to a Board Resolution
as permitted by Section 3.1, such terms have been, or
in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity
with the provisions of this Indenture, subject in the
case of Securities offered in a Periodic Offering, to
any conditions specified in such Opinion of Counsel;
and
(3) such Securities together with any coupons
appertaining thereto, when authenticated and
delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Company, enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of
general applicability relating to or affecting the
enforcement of creditors' rights and to general
equity principles and except further as enforcement
thereof may be limited by or subject to certain
exceptions and qualifications specified in such
Opinion of Counsel, including in the case of any
Securities denominated in a Foreign Currency, (A)
requirements that a claim with respect to any
Securities denominated other than in Dollars (or a
foreign currency or foreign currency unit judgment in
respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of
payments in foreign currency or currency units or
payments outside the United States.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee), the issue of such Securities pursuant to this Indenture will
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form,
then, unless otherwise provided with respect to such Securities pursuant to
Section 3.1, the Company shall execute and the Trustee shall, in accordance with
this Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Unless otherwise established pursuant to Section 3.1, each Depository
designated pursuant to Section 3.1 for a Registered Security in global form
must, at the time of its designation and at all times while it serves as
Depository, be a clearing agency registered under the Securities Exchange Act of
1934 and any other applicable statute or regulation. Neither the Company nor the
Trustee shall have any responsibility to determine if the Depository is so
registered.
Each Depository shall enter into an agreement with the Issuer and the
Trustee, as agent, governing the respective duties and rights of such
Depository, the Issuer and the Trustee, as agent, with regard to Securities
issued in global form.
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 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
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 3.9 together with a written statement (which need not comply
with Section 1.2 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 not be entitled to the benefits
of this Indenture.
Section 3.4. 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 of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, all or a portion of such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
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 pursuant to Section 9.2 in a Place of Payment for such 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 and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person entitled to
receive the definitive Bearer Security a certificate substantially in the form
approved in or pursuant to the Board Resolutions relating thereto and such
delivery shall occur only outside the United States. 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 except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment or in such other place or medium as may be specified pursuant
to Section 3.1 a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a
Place of Payment being herein sometimes referred to collectively as the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. The
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. Unless otherwise provided as
contemplated by Section 3.1, the Trustee is hereby appointed "Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount.
Unless otherwise provided as contemplated by Section 3.1, Bearer
Securities (except for any temporary global Bearer Securities) or any coupons
appertaining thereto (except for coupons attached to any temporary global Bearer
Security) shall be transferable by delivery.
Unless otherwise provided as contemplated by Section 3.1, at the option
of the Holder, Registered Securities of any series (except a Registered Security
in global form) may be exchanged for other Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
containing identical terms and provisions, 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 deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise specified as
contemplated by Section 3.1, Bearer Securities may not be issued in exchange for
Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, 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, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee 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 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 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 9.2, 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 any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series 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 date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the case may be
(or, if such coupon is so surrendered with such Bearer Security, such coupon
shall be returned to the person so surrendering the Bearer Security), 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.
Unless otherwise specified pursuant to Section 3.1 with respect to a
series of Securities or as otherwise provided below in this Section 3.5, owners
of beneficial interests in Securities of such series represented by a Security
issued in global form will not be entitled to have Securities of such series
registered in their names, will not receive or be entitled to receive physical
delivery of Securities of such series in certificated form and will not be
considered the Holders or owners thereof for any purposes hereunder.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred or exchanged except
as a whole by the Depository for such series to a nominee of such Depository or
by a nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depository for the
Securities of such series or if at any time the Depository for the Securities of
such series notifies the Company that it shall no longer be eligible under
Section 3.3, the Company shall appoint a successor Depository with respect to
the Securities of such series. Unless otherwise provided as contemplated by
Section 3.1, if a successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.1(b) (26) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities of a series issued in global form shall no longer be represented by
such a Security or Securities in global form. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new
certificated Security or Securities of the same
series of like tenor, of any authorized denomination
as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's
beneficial interest in the Security in global form;
and
(ii) to such Depository a new Security in global form of
like tenor in a denomination equal to the difference,
if any, between the principal amount of the
surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered
to Holders thereof.
(iii) Upon the exchange of a Security in global form for
Securities in certificated form, such Security in
global form shall be cancelled by the Trustee. Unless
expressly provided with respect to the Securities of
any series that such Security may be exchanged for
Bearer Securities, Securities in certificated form
issued in exchange for a Security in global form
pursuant to this Section shall be registered in such
names and in such authorized denominations as the
Depository for such Security in global form, pursuant
to instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so
registered.
Whenever any Securities are surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
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, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided as contemplated by Section 3.1, no service
charge shall be made for any registration of transfer or for any exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4 or 10.7 not involving any transfer.
Unless otherwise provided as contemplated by Section 3.1, none of the
Company, the Registrar or the Trustee shall be required (i) to issue, register
the transfer of, or exchange any Securities for a period beginning at the
opening of 15 Business Days before any selection for redemption of Securities of
like tenor and of the series of which such Security is a part and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Securities of like
tenor and of such series to be redeemed; (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.
Section 3.6. Replacement Securities. If a 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 harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Security with a destroyed, lost or stolen 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 the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.
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 or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved. (a) Unless
otherwise provided as contemplated by Section 3.1, 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 that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency
maintained for such purpose pursuant to 9.2; provided, however, that at the
option of the Company, interest on any series of Registered Securities that bear
interest may be paid (i) by check mailed to the address of the Person entitled
thereto as it shall appear on the Register of Holders of Securities of such
series or (ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (A) (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) principal, original issue discount, if any, and
premium, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing provided that any such instruction for payment
in the United States does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations; (B)
the interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon as provided in clause (A) above and,
as to other installments of interest, only upon presentation of such Security
for notation thereon of the payment of such interest; and (C) if at the time a
payment of principal of premium, if any, or interest, if any, on a Bearer
Security or coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States is
illegal or effectively precluded because of the imposition of exchange controls
or other similar restrictions on the payment of such amount in Dollars, then the
Company may instruct the Trustee to make such payment at a Paying Agent located
in the United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
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 (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such
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
deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the trustee for such deposit prior to
the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in
this clause (1) provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder
of such Registered Securities of such series at his
address as it appears in the Register, not less than
10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities of
such series (or their respective Predecessor
Securities) are registered at the close of business
on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest to the Persons in whose names such
Registered Securities of such series (or their
respective Predecessor Securities) are registered at
the close of business on a specified date in any
other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Registered 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 (2), such
manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment of any
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, premium, if any, and (subject
to Section 3.7) interest and any other payments on such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security shall
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
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 Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall 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 Security in global form, nothing herein shall
prevent the Company or 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 Depository (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may destroy cancelled Securities and coupons and, if so
destroyed, shall issue a certificate of destruction to the Company. The Company
may not issue new Securities to replace Securities that it has paid or delivered
to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. Currency and Manner of Payment in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, 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, premium, if any, interest, if any, and other
amounts, if any, on any Registered or Bearer Security of such series will be
made in the currency or currencies or currency unit or units in which such
Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 3.11, including without limitation any defined terms
specified herein, may be modified or superseded in whole or in part pursuant to
Section 3.1 with respect to any Securities.
(b) It may be provided pursuant to Section 3.1, with respect
to Registered Securities of any series, that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of,
premium, if any, or interest, if any, on such Registered Securities in any of
the currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.1, 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 or currency unit, 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 (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the Company). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee (or any applicable Paying Agent) not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currency unit as provided in
Section 3.11(a). The Trustee (or the applicable Paying Agent) shall notify the
Company and 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) If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.1, and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee (or the
applicable Paying Agent) an Exchange Rate Officers' Certificate in respect of
the Dollar, Foreign Currency or Currencies or other currency unit payments to be
made on such payment date. Unless otherwise specified pursuant to Section 3.1,
the Dollar, Foreign Currency or Currencies or other currency unit amount
receivable by Holders of Registered Securities who have elected payment in a
currency or currency unit as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on
the second 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) If a Conversion Event occurs with respect to a Foreign
Currency or any other currency unit in which any of the Securities are
denominated or payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, unless otherwise specified pursuant to
Section 3.1, with respect to each date for the payment of principal of, premium,
if any, and interest, if any, on the applicable Securities denominated or
payable in such Foreign Currency or such other currency unit occurring after the
last date on which such Foreign Currency or such other currency unit was used
(the "Conversion Date"), the Dollar shall be the currency of payment for use on
each such payment date (but such Foreign Currency or such other currency unit
that was previously the currency of payment shall, at the Company's election,
resume being the currency of payment on the first such payment date preceded by
15 Business Days during which the circumstances which gave rise to the Dollar
becoming such currency of payment no longer prevail). Unless otherwise specified
pursuant to Section 3.1, the Dollar amount to be paid by the Company to the
Trustee or any applicable Paying Agent and by the Trustee or any applicable
Paying Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a Foreign Currency
that is a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the
Holder of a Registered Security denominated in any currency or currency unit
shall have elected to be paid in another currency or currency unit or in other
currencies as provided in paragraph (b) above, and (i) a Conversion Event occurs
with respect to any such elected currency or currency unit, such Holder shall
receive payment in the currency or currency unit in which payment would have
been made in the absence of such election and (ii) if a Conversion Event occurs
with respect to the currency or currency unit in which payment would have been
made in the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) of this Section 3.11 (but, subject to any
contravening valid election pursuant to paragraph (b) above, the elected payment
currency or currency unit, in the case of the circumstances described in clause
(i) above, or the payment currency or currency unit in the absence of such
election, in the case of the circumstances described in clause (ii) above,
shall, at the Company's election, resume being the currency or currency unit of
payment with respect to Holders who have so elected, but only with respect to
payments on payment dates preceded by 15 Business Days during which the
circumstances which gave rise to such currency or currency unit, in the case of
the circumstances described in clause (i) above, or the Dollar, in the case of
the circumstances described in clause (ii) above, becoming the currency or
currency unit, as applicable, of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.11, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit.
"Conversion Event" shall mean the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, or (ii) any
currency unit for the purposes for which it was established.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities as specified pursuant to Section 3.1 by which
the written election referred to in Section 3.11(b) may be made.
"Euro" means the lawful currency of the participating member states of
the European Union that adopt a single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on European Union
signed February 7, 1992.
"Exchange Rate Agent", when used with respect to Securities of or
within any series, shall mean, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 or Section 3.12.
"Exchange Rate Officer's Certificate" shall mean a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the
President, the Chief Financial Officer, any Senior Vice President, the
Treasurer, any Vice President or any Assistant Treasurer of the Company.
"Foreign Currency" shall mean any currency issued by the government or
governments of one or more countries other than the United States or by any
recognized confederation or association of such governments and shall include
the Euro.
"Market Exchange Rate" shall mean, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, as of any date of
determination, (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 3.1 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
buying rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located in 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 3.1, in
the event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such currency or currency unit in question (which may include any such bank
acting as Trustee under this Indenture), or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in order
to make payments in respect of such securities.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which such Component
Currency represented in the relevant currency unit on the Conversion Date. If
after the Conversion Date the official unit of any Component Currency is altered
by way of combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a single
currency, the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in such
single currency, and such amount shall thereafter be a Specified Amount and such
single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be replaced by
specified amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of such
replacement, shall be equal to the Specified Amount of such former Component
Currency and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
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 any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to any
currency unit in which Securities are denominated or payable, the Company will
promptly give written notice thereof to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent)
will promptly thereafter give notice in the manner provided in Section 1.6 to
the affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee (or any applicable Paying
Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Exchange Rate Agent. (a)
Unless otherwise specified pursuant to Section 3.1, if and so long as the
Securities of any series (i) are denominated in a currency or currency unit
other than Dollars or (ii) may be payable in a currency or currency unit 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 3.11
for the purpose of determining the applicable rate of exchange and, if
applicable, for the purpose of converting the issued currency or currencies or
currency unit or units into the applicable payment currency or currency unit for
the payment of principal, premium, if any, and interest, if any, pursuant to
Section 3.11.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company 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 3.1, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular
series that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same currency or currencies or
currency unit or units).
Section 3.13. Wire Transfers. Notwithstanding any other provisions to
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Securities (whether pursuant to optional or
mandatory redemption payments, interest payment or otherwise) by wire transfer
and immediately available funds to an account designated by the Trustee on or
before the date and time such monies are to be paid to the Holders of the
Security in accordance with the terms hereof.
Section 3.14. CUSIP Numbers. The Company in issuing Securities may use
"CUSIP" numbers (if then generally in use), and if so, the Trustee may use the
CUSIP numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed in the notice or
on the Securities, that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption or exchange shall not
be affected by any defect or omission of such CUSIP numbers. The Company will
promptly notify the Trustee of any change in CUSIP numbers known to an Officer
of the Company.
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the Indenture.
(a) This Indenture shall upon Company Request cease to be of further effect with
respect to Securities of or within any series and any coupons appertaining
thereto (except as to any surviving rights of registration of transfer or
exchange of such Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other
than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered
Securities and maturing after such exchange,
surrender of which is not required or has been waived
as provided in Section 3.5, (ii) such Securities and
coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in
Section 3.6, (iii) such coupons appertaining to
Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of
which has been waived as provided in Section 10.6 and
(iv) such Securities and coupons for whose payment
money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for 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 the purpose an amount in the
currency or currencies or currency unit or
units in which the Securities of such series
are payable, sufficient to pay and discharge
the entire indebtedness on such Securities
and such coupons not theretofore delivered
to the Trustee for cancellation, for
principal, premium, if any, and interest,
with respect thereto, to the date of such
deposit (in the case of Securities which
have become due and payable) or to the
Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other
sums then 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
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.8, the obligations of the Company to any Authenticating Agent under
Section 6.13 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 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, premium, if any and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's Option
to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section 3.1
provision is made to exclude with respect to the Securities of a particular
series either or both of (i) defeasance of the Securities of or within such
series under Section 4.4 or (ii) covenant defeasance of the Securities of or
within such series under Section 4.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.6
through 4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities of such series, shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 4.4 (if applicable) or
Section 4.5 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth below
in this Article.
Section 4.4. Defeasance and Discharge. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
the Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 4.6 are
satisfied (hereinafter, a "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining
thereto, which Securities and coupons appertaining thereto shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall on Company Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities and any
coupons appertaining thereto to receive, solely from the trust funds described
in Section 4.6(a) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest, if any, on such
Securities or any coupons appertaining thereto when such payments are due; (ii)
the Company's obligations with respect to such Securities under Sections 3.5,
3.6, 9.2 and 9.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section 3.1(b)
(18); (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Article IV. Subject to compliance with this Article IV,
the Company may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 4.5 with respect to such Securities and any
coupons appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's exercise of the
option specified in Section 4.3 applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to
Section 3.1, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4 and 9.5, or such other covenant,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1(3) or 5.1(6) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another
trustee satisfying the requirements of Section 6.11
who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of
Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee,
for purposes of such Sections also a "Trustee") as
trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this
Section 4.6(a), specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons
appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in
an amount (in such currency, currencies or currency
unit in which such Securities and any coupons
appertaining thereto are then specified as payable
at Maturity), or (B) if Securities of such series
are not subject to repayment at the option of
Holders, Government Obligations which through the
payment of interest and principal in respect thereof
in accordance with their terms will provide, not
later than one day before the due date of any
payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the
opinion of a nationally recognized independent
accounting or investment banking firm expressed in a
written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, (x) the
principal of, premium, if any, and interest, if any,
on such Securities and any coupons appertaining
thereto on the Maturity of such principal or
installment of principal or interest and (y) any
mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due
and payable in accordance with the terms of this
Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit the
Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future
date or dates in accordance with Article X which
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a
Default or Event of Default under, this Indenture or
result in a breach or violation of, or constitute a
default under, any other material agreement or
instrument to which the Company is a party or by
which it is bound.
(c) In the case of an election under Section 4.4, no
Default or Event of Default under Section 5.1(4) or
5.1(5) with respect to such Securities and any
coupons appertaining thereto shall have occurred and
be continuing during the period commencing on the
date of such deposit and ending on the 91st day
after such date (it being understood that this
condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to
the effect that (i) the Company has received from,
or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change
in the applicable Federal income tax law, in either
case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such
Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the
same amounts and in the same manner and at the same
times, as would have been the case if such deposit,
defeasance and discharge had not occurred.
(e) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of
such Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the
defeasance under Section 4.4 or the covenant
defeasance under Section 4.5 (as the case may be)
have been complied with and an Opinion of Counsel to
the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related
exercise of the Company's option under Section 4.4
or Section 4.5 (as the case may be), registration is
not required under the Investment Company Act of
1940, as amended, by the Company, with respect to
the trust funds representing such deposit or by the
trustee for such trust funds or (ii) all necessary
registrations under said act have been effected.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or
substitute terms, conditions or limitations which
may be imposed on the Company in connection
therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, 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 3.1, if, after a deposit referred to in Section 4.6(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.6(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 4.6(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
premium, if any, and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable Market Exchange Rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
Section 4.8. Repayment to Company. The Trustee (and any Paying Agent)
shall promptly pay to the Company upon Company Request any excess money or
securities held by them at any time.
Section 4.9. Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received on such Government Obligations,
other than any such tax, fee or other charge that by law is for the account of
the Holders of the Securities subject to defeasance or covenant defeasance
pursuant to this Article.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default" occurs with
respect to the Securities of any series, except to the extent such event is
specifically deleted or modified by the applicable Board Resolutions or
supplemental identure as contemplated by Section 3.1 for the Securities of such
series, if (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) the Company defaults in the payment of interest on
any Security of that series or any coupon
appertaining thereto or any additional amount payable
with respect to any Security of that series as
specified pursuant to Section 3.1(b)(17) when the
same becomes due and payable and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of or any premium on any Security of that series when
the same becomes due and payable at its Maturity or
on redemption or otherwise, or in the payment of a
mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company defaults in the performance of, or
breaches, any covenant or warranty of the Company in
this Indenture with respect to any Security of that
series (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and such
default or breach continues for a period of 90 days
after there has been given, by registered or
certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding
Securities of that series, a written notice
specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice
of Default" hereunder;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against
it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a
general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for
relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the
liquidation of the Company; and the order or decree
remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that
series.
The term "Bankruptcy Law" means Title 11, U.S. Code,
or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official
under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice to the Company (and, if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount or other amount as may be specified in the terms of that series) of all
the Securities of that series to be due and payable and upon any such
declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) shall be immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest
becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof and such default continues for a period of 10
days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal, premium, if any, and on any overdue interest, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such principal, premium, if any, and
interest 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 such principal, premium, if any, and interest amounts so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company.
In addition, if an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed, in
its own name and as trustee of an express trust, to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of
Securities allowed in any judicial proceedings relating to the Company, its
creditors or its property.
Section 5.5. 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, in its own name and as
trustee of an express trust, without the possession of any of the Securities or
the production thereof in any proceeding relating thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series by notice to
the Trustee may waive on behalf of the Holders of all Securities of such series
a past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
coupon appertaining thereto or (ii) in respect of a covenant or provision hereof
which pursuant to Section 8.2 cannot be amended or modified without the consent
of the Holder of each Outstanding Security of such series adversely affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. In case of
any such waiver, the Company, the Trustee and the Holders shall be restored to
their former positions and rights hereunder and under the Securities of such
series, respectively.
Section 5.8. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) 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 it with respect to
Securities of that series; provided, however, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting, or that would in the
good faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability and (iii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any Security
of any series or any coupons appertaining thereto 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) the 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 at least 25% in aggregate principal
amount of the Outstanding Securities of that series
have made a 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
indemnity satisfactory to the Trustee against any
loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed
to institute any such proceedings; and
(5) during such 60 day period, the Holders of a majority
in aggregate principal amount of the Outstanding
Securities of that series have not given to the
Trustee a direction inconsistent with such written
request.
No one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any
right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit
of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, but subject to Section 9.2, the right of any
Holder of a Security or coupon to receive payment of principal of, premium, if
any, and, subject to Sections 3.5 and 3.7, interest on the Security, on or after
the respective due dates expressed in the Security (or, in case of redemption,
on the redemption dates), and the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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, 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 Trustee for amounts due under Section 6.8;
Second: Subject to the terms of any subordination entered into
as contemplated by Section 3.1(b) (27) hereof, to Holders of
Securities and coupons in respect of which or for the benefit
of which such money has been collected for amounts due and
unpaid on such Securities for principal of, premium, if any,
and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest,
respectively; and
Third: The balance, if any, to the Company or any other Person
or Persons entitled thereto.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Unless otherwise specified in the Supplemental Indenture with respect
to a Series of Securities, in any case where Securities are outstanding which
are denominated in more than one currency, or in a composite currency and at
least one other currency, and the Trustee is directed to make ratable payments
under this Section to Holders of Securities, the Trustee shall calculate the
amount of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security to
whom an amount is due and payable under this Section which is denominated in a
foreign currency or a composite currency, determine that amount of U.S. Dollars
that would be obtained for the amount owing such Holder, using the rate of
exchange at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York U.S. Dollars with such amount owing, (ii)
calculate the sum of all U.S. Dollar amounts determined under (i) and add
thereto any amounts due and payable in U.S. Dollars; and (iii) using the
individual amounts determined in (i) or any individual amounts due and payable
in U.S. Dollars, as the case may be, as a numerator and the sum calculated in
(ii) as a denominator, calculate as to each Holder of a Security to whom an
amount is owed under this Section the fraction of the amount collected under
this Article payable to such Holder. Any expenses incurred by the Trustee in
actually converting amounts owing Holders of Securities denominated in a
currency or composite currency other than that in which any amount is collected
under this Article shall be likewise (in accordance with this paragraph) be
borne ratably by all Holders of Securities to whom amounts are payable under
this Section.
Unless otherwise specified in the Supplemental Indenture with respect
to a Series of Securities, to the fullest extent allowed under applicable law,
if for the purpose of obtaining judgment against the Company in any court it is
necessary to convert the sum due in respect of the principal of, or any premium
or interest on the Securities of any series (the "Required Currency") into a
currency in which judgment will be rendered (the "Judgment Currency"), the rate
of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Business Day preceding that
on which final judgment is given. The Company shall not be liable for any
shortfall nor shall it benefit from any windfall in payments to Holders of
Securities under this Section caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above and the time the
Trustee converts the Judgment Currency into the Required Currency to make
payments under this Section to Holders of Securities, but payment of such
judgment shall discharge all amounts owed by the Company on the claim or claims
underlying such judgment.
Section 5.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Company from paying all or any portion of the principal of (or
premium, if any) or interest on the Securities contemplated herein or in the
Securities or that 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 VI
THE TRUSTEE
Section 6.1. Rights of Trustee. Subject to the applicable provisions of
the Trust Indenture Act:
(a) The Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon
any document believed by it to be genuine and to have
been signed or presented by the proper party or
parties. The Trustee need not investigate any fact or
matter stated in the document, and may conclusively
rely, in good faith, as to the truth of the
statements and concerns of the opinions expressed
therein.
(b) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company
Request or Company Order (other than delivery of any
Security, together with any coupons appertaining
thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3, which shall be
sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it
may consult with counsel or require an Officers'
Certificate. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on a Board Resolution, the written advice of
counsel acceptable to the Trustee, a certificate of
an Officer or Officers delivered pursuant to Section
1.2, an Officers' Certificate or an Opinion of
Counsel.
(d) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with
due care.
(e) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized or within its discretion or
rights or powers.
(f) The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial
liability in the performance of any of its duties
hereunder, or in the exercise of its rights or
powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not
reasonably assured to it.
(g) Except during the continuance of an Event of Default,
the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in
this Indenture, and no implied covenants or
obligations shall be read into this Indenture against
the Trustee.
(h) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(i) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders
of a majority in aggregate principal amount of the
Outstanding Securities (pursuant to Section 5.8)
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
(j) 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.
(k) Any permissive right of the Trustee hereunder shall
not be construed to be a duty.
(l) The Trustee shall not be charged with knowledge of
any Event of Default, other than as described in
Section 5.1(1) or (2), unless and except to the
extent actually known by a Responsible Officer of the
Trustee or written notice thereof is received by the
Trustee at its Corporate Trust Office.
Notwithstanding anything contained herein to the contrary, in case an
Event of Default with respect to the Securities of any series has occurred and
is continuing, the Trustee shall exercise, with respect to Securities of such
series, such of the rights and powers vested in it by this Indenture, and shall
use the same degree of care and skill in their exercise, as a prudent individual
would exercise or use under the circumstances in the conduct of his or her own
affairs.
Section 6.2. Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company, an Affiliate or Subsidiary with the same rights it would
have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 6.3. Money Held in Trust. Subject to the provisions of Section
4.8 and the last paragraph of Section 9.3, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for investment of or interest on any money received by it hereunder
except as otherwise agreed with the Company. Except for amounts deposited
pursuant to Article Thirteen, so long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid from
time to time to the Company upon a Company Order. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law.
Section 6.4. Trustee's Disclaimer. The recitals contained herein and in
the Securities, except the Trustee's certificate of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities or any coupon,
except that the Trustee represents and warrants that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and thereunder; that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied or to be
supplied to the Company in connection with the registration of any Securities
are and will be true and accurate subject to the qualifications set forth
therein; and that such Statement complies and will comply in all material
respects with the requirements of the Trust Indenture Act and the Securities
Act. The Trustee shall not be accountable for the Company's use of the proceeds
from the Securities or for monies paid over to the Company pursuant to the
Indenture.
Section 6.5. Notice of Defaults. If a Default occurs and is continuing
with respect to the Securities of any series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall, within 90 days after it occurs,
transmit, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, notice of all uncured Defaults known to it; provided,
however, that, except in the case of a Default in payment on the Securities of
any series, the Trustee may withhold the notice if and so long as a Responsible
Officer in good faith determines that withholding such notice is in the
interests of Holders of Securities of that series; provided, further, that in
the case of any default or breach of the character specified in Section 5.1(3)
with respect to the Securities and coupons of such series, no such notice to
Holders shall be given until at least 90 days after the occurrence thereof.
Section 6.6. Reports by Trustee to Holders. (a) Within 60 days after
each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act. A copy of each report
shall, at the time of such transmission to Holders, be filed by the Trustee with
each stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the Trustee
when the Securities are listed on any stock exchange and of any delisting
thereof.
(b) The Trustee shall from time to time transmit by mail to
all Holders of Securities as provided in Section 313(c) of the Trust Indenture
Act, such reports as are required to be filed pursuant to Section 313(b) of the
Trust Indenture Act.
Section 6.7. Security Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series Outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.8. Compensation and Indemnity. (a) The Company shall pay to
the Trustee from time to time such reasonable compensation for its services as
the Company and the Trustee may agree in writing from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable expenses, disbursements and advances incurred by it
in connection with the performance of its duties under this Indenture, except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith. Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it
harmless against, any and all loss, liability, damage, claim or expense
(including taxes other than taxes based upon, measured by or determined by the
income of the Trustee), including the costs and expenses of defending itself
against any third-party claim (whether asserted by any Holder or any other
Person (other than the Company)), incurred by it arising out of or in connection
with its acceptance or administration of the trust or trusts hereunder
(collectively, "Claims"). The Trustee shall notify the Company promptly of any
Claim for which it may seek indemnity. The Company shall defend the Claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
(c) The Company need not reimburse any expense, disbursement
or advance or indemnify against any Claim incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that
held in trust to pay principal, premium, if any, and interest on particular
Securities.
(e) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(4) or Section
5.1(5), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
(f) The provisions of this Section shall survive the
termination of this Indenture.
(g) The protections, agreements and indemnities afforded to
the Trustee under this Section shall include any other agency to which it may be
appointed or with respect to which it may serve hereunder, or in respect of any
Securities under any related Board Resolution or supplemental indenture,
including but not limited to registrar, paying agent, conversion agent or
calculation agent.
Section 6.9. Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.10.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.10 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series may remove the Trustee with respect to
that series by so notifying the Trustee and the Company in writing and may
appoint a successor Trustee for such series with the Company's consent.
If an instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If at any time:
(1) the Trustee fails to comply with Section
310(b) of the Trust Indenture Act 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 6.11 hereof or Section 310(a) of the
Trust Indenture Act and shall fail to resign
after written request therefor by the
Company or by any Holder of a Security who
has been a bona fide Holder of a Security
for at least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a
receiver or public officer takes charge of
the Trustee or its property or affairs for
the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or becomes incapable
of acting or if a vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company shall promptly appoint
a successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.10. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.10, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.10,
then, subject to Section 315(e) of the Trust Indenture Act, 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.
Section 6.10. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee, without further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
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, (ii) 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 (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 1.6.
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 6.11. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder with respect to each series of Securities (which need not
be the same Trustee for all series). Each Trustee hereunder shall be eligible to
act as trustee under Section 310(a) (1) of the Trust Indenture Act and shall
have a combined capital and surplus of at least $100,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
the requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $1,500,000 and subject to supervision or examination by Federal
or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time such reasonable compensation as the Company and such Authenticating Agent
agree in writing from time to time including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the [Securities] [of the series designated herein and]
referred to in the within-mentioned Indenture.
________________________, as Trustee
By
as Authenticating Agent
By
Authorized Signatory
ARTICLE VII
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets Permitted. The
Company may merge or consolidate with or into any other Person or sell, convey,
transfer or otherwise dispose of all or substantially all of its assets to any
Person, if (i) (A) in the case of a merger or consolidation, the Company is the
surviving corporation or (B) in the case of a merger or consolidation where the
Company is not the surviving corporation and in the case of any sale,
conveyance, transfer or other disposition, the resulting, surviving or
transferee Person is organized and existing under the laws of the United States
or a State thereof and such Person expressly assumes by supplemental indenture
all the obligations of the Company under the Securities and any coupons
appertaining thereto and under this Indenture, (ii) immediately thereafter,
giving effect to such merger or consolidation, or such sale, conveyance,
transfer or other disposition, no Default or Event of Default shall have
occurred and be continuing and (iii) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such merger, consolidation, sale, conveyance, transfer or other disposition
complies with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with. In the event of the
assumption by a successor Person of the obligations of the Company as provided
in clause (i) (B) of the immediately preceding sentence, such successor Person
shall succeed to and be substituted for the Company hereunder and under the
Securities and any coupons appertaining thereto and all such obligations of the
Company shall terminate.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto, in form
reasonably 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 and obligations of the Company herein
and in the Securities (with such changes herein and
therein as may be necessary or advisable to reflect
such Person's legal status, if such Person is not a
corporation); or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities,
stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon
the Company or to comply with any requirement of the
Commission or otherwise in connection with the
qualification of this Indenture under the Trust
Indenture Act or otherwise; or
(3) to add any additional Events of Default with respect
to all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
facilitate the issuance of Bearer Securities
(including, without limitation, to provide that
Bearer Securities may be registrable as to principal
only) or to facilitate or provide for the issuance of
Securities in global form in addition to or in place
of Securities in certificated form; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or
elimination shall become effective only with respect
to Securities which have not been issued as of the
execution of such supplemental indenture or 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 add guarantees with respect to any or all of the
Securities; or
(7) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or
(8) 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 4.1, 4.4, and 4.5;
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; or
(9) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(10) to provide for the delivery of indentures
supplemental hereto or the Securities of any series
in or by means of any computerized, electronic or
other medium, including without limitation by
computer diskette; or
(11) to evidence and provide for the acceptance of
appointment hereunder by a successor or separate
Trustee with respect to the Securities of one or more
series and/or 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 Article VI; or
(12) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States
(including any of the states and the District of
Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer
Securities or coupons, if any; or
(13) to correct or supplement any provision herein which
may be inconsistent with any other provision herein
or to cure any ambiguity or omission or to correct
any mistake; or
(14) to make any other provisions with respect to matters
or questions arising under this Indenture, provided
such action shall not adversely affect the interests
of the Holders of Securities of any series in any
material respect.
Section 8.2. With Consent of Holders. With the written consent of the
Holders of a majority of the aggregate principal amount of the Outstanding
Securities of each series adversely affected by such supplemental indenture
(with the Securities of each series voting as a class), the Company and the
Trustee may enter into an indenture or indentures supplemental hereto to add any
provisions to or to change or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify the rights of the Holders
of Securities of each such series; provided, however, that without the consent
of the Holder of each Outstanding Security affected thereby, a supplemental
indenture under this Section may not:
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security
or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change any Place
of Payment where, or the coin or currency in which
any Securities or any premium or the interest thereon
is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is
required for any waiver of compliance with certain
provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this
Indenture;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes
specified in Section 9.2; or
(4) except to the extent provided in Section 8.1(11),
make any change in Section 5.7 or this 8.2 except to
increase any percentage or to provide that certain
other provisions of this Indenture cannot be modified
or waived except with the consent of the Holders of
each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to
require the consent of any Holders with respect to
changes in the references to the "Trustee" and
concomitant changes in this Section, in accordance
with the requirements of Sections 6.10(b) and
8.1(11);
(5) release any guarantors from their guarantees of the
Securities, or, except as contemplated in any
supplemental indenture, make any change in a
guarantee of a Security that would adversely affect
the interests of the Holders; or
(6) modify the ranking or priority of the Securities.
For the purposes of this Section 8.2, if the
Securities of any series are issuable upon the
exercise of warrants, any holder of an unexercised
and unexpired warrant with respect to such series
shall not be deemed to be a Holder of Outstanding
Securities of such series in the amount issuable upon
the exercise of such warrants.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise. The Trustee shall enter into any such
supplemental indenture presented to it by the Company in compliance with this
Article 8 if such supplemental indenture does not adversely affect the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby; provided that if such supplemental indenture
makes any of the changes described in clauses (1) through (4) of the first
proviso to Section 8.2, such supplemental indenture shall bind each Holder of a
Security who has consented to it and every subsequent Holder of such Security or
any part thereof.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any coupons, 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 including any coupons 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 including any coupons of such series.
ARTICLE IX
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on the Securities of that series in accordance with the terms
of the Securities of such series, any coupons appertaining thereto and this
Indenture. An installment of principal, premium, if any, or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. If Securities of a series
are issued 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 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, (i) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States, 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 The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for that series which is located outside
the United States where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons unless otherwise
specified in the Supplemental Indenture for such Series, may be presented and
surrendered for payment and conversion at the offices specified in the Security,
in London, England, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands (provided,
however, that the foregoing appointment shall not impose or imply any obligation
on the part of the Trustee to maintain any office for any such purposes other
than the Corporate Trust Office.)
Unless otherwise specified as contemplated by Section 3.1, 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, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at an office of a Paying Agent of the Company in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Subject to the preceding paragraphs, the Company may also from time to
time designate one or more other offices or agencies where the Securities
(including any coupons, if any) of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities (including any coupons, if any) 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 as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent. The Paying Agent may make reasonable
rules not inconsistent herewith for the performance of its functions.
Section 9.3. Money for Securities to Be Held in Trust; Unclaimed Money.
If the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
If the Company is not acting as its own Paying Agent, the Company will
cause each Paying Agent for any series of Securities other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on
Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that
series) in the making of any payment of principal,
premium, if any, or interest on the Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by
Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Subject to applicable abandoned property laws, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of any principal, premium or interest or other amounts on any Security
of any series and remaining unclaimed for two years after such principal,
premium, if any, or interest or other amounts has become due and payable shall
be paid to the Company on Company Request (including interest income on such
funds, if any), or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security and coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, 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 9.4. Corporate Existence. Subject to Article VII, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; provided that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if, in the
opinion of the Company, such abandonment or termination is in the best interests
of the Company.
Section 9.5. Maintenance of Properties. The Company will cause all
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as (and to the extent) in the judgment of the Company may be
necessary or appropriate in connection with its business; provided, however,
that nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 9.6. Reports by the Company. The Company covenants:
(a) to 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 time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or
reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such of the
supplementary and periodic information, documents and
reports which may be required pursuant to section 13
of the Securities Exchange Act of 1934, as amended,
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;
(b) to file with the Trustee and the Commission, in
accordance with the 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 provided for in this Indenture, as may be
required from time to time by such rules and
regulations; and
(c) to transmit to all Holders of Securities within 30
days after the filing thereof with the Trustee, in
the manner and to the extent provided in section
313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and
(b) of this Section 9.6, as may be required by rules
and regulations prescribed from time to time by the
Commission.
Section 9.7. Annual Review Certificate. The Company covenants and
agrees to deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, a brief certificate from the principal executive officer,
principal financial officer, or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 9.7, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 9.8. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, within 30 days after the Company
shall have received notice that the same has become delinquent (1) all material
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material lien upon the property of the Company
or any 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,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings; provided, further, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim unless the failure to pay or discharge such
tax, assessment, charge or claim would, individually or in the aggregate with
all such failures, have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
ARTICLE X
REDEMPTION
Section 10.1. Applicability of Article. Securities (including coupons,
if any) of or within any series which are redeemable in whole or in part before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified in the applicable Board Resolution or
supplemental indenture with respect to such Series of Securities, as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities, including coupons, if any, shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities or coupons, if any, of any series
of the same tenor, the Company shall, at least 60 days (45 days in the case of
redemption of all Securities of any series or of any series with the same (i)
Stated Maturity, (ii) period or periods within which, price or prices at which
and terms and conditions upon which such Securities may or shall be redeemed or
purchased, in whole or in part, at the option of the Company or pursuant to any
sinking fund or analogous provision or repayable at the option of the Holder and
(iii) rate or rates at which the Securities bear interest, if any, or formula
pursuant to which such rate or rates accrue (collectively, the "Equivalent
Principal Terms")) 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 of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed. If less than all
the Securities with Equivalent Principal Terms of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities (including coupons, if any) of that series with
Equivalent Principal Terms or any integral multiple thereof) of the principal
amount of Securities (including coupons, if any) of such series with Equivalent
Principal Terms of a denomination larger than the minimum authorized
denomination for Securities of that series. Unless otherwise provided in the
terms of a particular series of Securities, the portions of the principal of
Securities so selected for partial redemption shall be equal to the minimum
authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
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. If the
Securities (including coupons, if any) of a series having different issue dates,
interest rates and maturities (whether or not originally issued in a Periodic
Offering) are to be redeemed, the Company in its discretion may select the
particular Securities or portions thereof to be redeemed and shall notify the
Trustee thereof by such time prior to the relevant redemption date or dates as
the Company and the Trustee may agree.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 days nor more than 60 days prior
to the Redemption Date, unless a shorter period is specified in the Securities
to be redeemed, to each Holder of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued
interest, if any, to be paid;
(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and,
in the case of partial redemption of any Securities,
the principal amounts) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender
of such Security, the Holder of such Security will
receive, without a charge, a new Security or
Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities
are to be surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for redemption
and all unmatured coupons, if any, appertaining
thereto must be surrendered to the Paying Agent to
collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price
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;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) 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;
(10) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not
to be redeemed and if such Bearer Securities may be
exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to
Section 3.5 or otherwise, the last date, as
determined by the Company, on which such exchanges
may be made; and
(11) the CUSIP number, if any, of such Securities.
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
(provided that the Company prepare and provide to the
Trustee the form of such notice, or, if acceptable to
the Trustee, provides sufficient information to
enable the Trustee to prepare such notice, in each
case on a timely basis.)
Section 10.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article XI, segregate and hold in
trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency units or composite currencies) in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, 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 unless otherwise specified as
contemplated by Section 3.1, installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date and the principal of, and
premium, if any, on such Bearer Securities shall be payable only at an office or
agency located outside the United States and it possessions (except as otherwise
provided in Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of coupons for such interest;
and provided, further, that, unless otherwise specified as contemplated by
Section 3.1, 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 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
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 of the United States (except as otherwise
provided pursuant to Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, 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 prescribed
therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed only in part at any Place of Payment therefor (with, if the
Company or the Trustee so require, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge, a new Security or Securities of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion of
the principal amount of the Security surrendered.
ARTICLE XI
SINKING FUNDS
Section 11.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 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 10.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.6 and 10.7.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
AMERICA ONLINE, INC.
By:
Title:
[Seal]
Attest:
Title:
STATE STREET BANK AND TRUST COMPANY, as
Trustee
By:
Title:
[Seal]
Attest:
Title:
AMERICA ONLINE, INC.
Convertible Subordinated Notes Due 2019
SUPPLEMENTAL INDENTURE NO. 1
Dated as of December 6, 1999
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
America Online, Inc.
Convertible Subordinated Notes Due 2019
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1, dated as of December 6, 1999,
between America Online, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (the "Company"), and State Street Bank and
Trust Company, a trust company duly organized and existing under the laws of the
Commonwealth of Massachusetts, as Trustee (the "Trustee").
RECITALS
The Company and the Trustee have heretofore executed an
Indenture (the "Base Indenture" and, together with this Supplemental Indenture,
the "Indenture"), dated as of December 6, 1999, 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 2.1 and 3.1 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 8.1 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
2.1 and 3.1 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) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(3) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein;
(4) 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;
(5) 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; and
(6) 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.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Common Stock" means the shares of Common Stock, par value
$.01 per share, of the Company as it exists on the date of this Supplemental
Indenture or any other shares of Capital Stock of the Company into which the
Common Stock shall be reclassified or changed.
"Conversion Price" means the Redemption Price at the relevant
date of determination divided by the Conversion Rate at such date.
"DTC" means The Depository Trust Company as depository for the
Global Notes, or any successor thereto.
"DTC Letter of Representations" means the letter of
representations from the Company and the Trustee to DTC dated December 3, 1999
with respect to the Global Notes.
"Global Notes" means Notes that are in the form of the Notes
attached hereto as Exhibit A.
"Issue Date" of the Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"Issue Price" of the Note means, in connection with the
original issuance of the Note, the initial issue price at which the Note is sold
as set forth on the face of the Note.
"Original Issue Discount" of the Note means the difference
between the Issue Price and the Principal Amount at Maturity of the Note,
accruing as set forth in the Note.
"Principal Amount at Maturity" means the Principal Amount at
Maturity as set forth on the face of the Note.
"Redemption Date" or "redemption date" means the date
specified for redemption of the Notes in accordance with the terms of the Notes
and this Indenture.
"Redemption Price" or "redemption price" has the meaning set
forth in paragraph 5 of the Notes.
"Senior Debt" means the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts (including collection expenses, attorneys' fees and late charges)
owing with respect to, the following, whether direct or indirect, absolute or
contingent, secured or unsecured, due or to become due, outstanding at the date
of execution of this Supplemental Indenture or thereafter incurred, created or
assumed:
(a) indebtedness of the Company for money borrowed or evidenced
by bonds, debentures, notes or similar instruments;
(b) reimbursement obligations of the Company with respect to
letters of credit, bankers' acceptances and similar facilities issued for the
account of the Company;
(c) every obligation of the Company issued or assumed as the
deferred purchase price of property or services purchased by the Company,
excluding any trade payables and other accrued current liabilities incurred in
the ordinary course of business;
(d) (i) obligations of the Company as lessee under leases
required to be capitalized on the balance sheet of the lessee under United
States generally accepted accounting principles and (ii) if the Company's 4%
Convertible Subordinated Notes due November 15, 2002 are no longer outstanding,
obligations of the Company under leases required to be accounted for as
operating leases, provided either (A) such operating lease requires, at the end
of the tem thereof, that the Company make a payment other than accrued periodic
rent if it does not acquire the leased property subject to such lease or (B) the
Company has an option to acquire the leased property exercisable at any time
under specified circumstances;
(e) obligations of the Company under interest rate and currency
swaps, caps, floors, collars or similar arrangements intended to protect the
Company against fluctuations in interest or currency exchange rates;
(f) indebtedness of others of the kinds described in the
preceding clauses (a) through (e) that the Company has assumed or guaranteed or
of which the Company has otherwise assured the payment, directly or indirectly;
and/or
(g) deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness or obligation
described in the preceding clauses (a) through (f), whether or not there is any
notice to or consent of the Holders of Notes;
provided, however, that the following shall not constitute Senior Debt:
(i) any particular indebtedness or obligation that is owed by
the Company to any of its direct and indirect Subsidiaries, and
(ii) any particular indebtedness or obligation, or any
deferral, renewal, extension or refunding of such indebtedness or obligation, if
it is expressly stated in the governing terms or in the assumption thereof that
the indebtedness or obligation involved is not senior in right of payment to the
Securities or that such indebtedness or obligation is pari passu with or junior
to the Securities.
"Supplemental Indenture" means this Supplemental Indenture No.
1 dated as of December 6, 1999.
"Tax Event" means that the Company shall have received an
opinion from independent tax counsel experienced in such matters to the effect
that, on or after December 6, 1999, as a result of (a) any amendment to, or
change, including any announced prospective change, in, the laws, or any
regulations thereunder, of the United States or any political subdivision or
taxing authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced or which action is taken, on or after
December 6, 1999, there is more than an insubstantial risk that interest,
including original issue discount, payable on the Notes either: (a) would not be
deductible on a current accrual basis, or (b) would not be deductible under any
other method, in either case in whole or in part, by the Company, by reason of
deferral, disallowance, or otherwise, for United States federal income tax
purposes.
"trading day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if the
Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"TIA" means the Trust Indenture Act of 1939, as in effect on
the date of this Indenture, provided, however, that in the event the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
Section 1.3. Other Definitions.
Defined in
Term Section
"Average Market Price"...............................................3.7(d)
"Average Sale Price"....................................................7.7
"Bankruptcy Law"........................................................4.1
"Base Indenture"...................................................Preamble
"beneficial owner"...................................................3.8(a)
"cash"...............................................................3.7(b)
"Company"..........................................................Preamble
"Company Notice".....................................................3.7(e)
"Company Notice Date"................................................3.7(c)
"Conversion Agent"......................................................2.4
"Conversion Date".......................................................7.2
"Conversion Rate".......................................................7.1
"Custodian".............................................................4.1
"Defaulted Interest".................................................6.2(b)
"Event of Default"................................................ ..4.1
"Exchange Act".......................................................3.7(d)
"Ex-Dividend Time"......................................................7.7
"Extraordinary Cash Dividend"...........................................7.8
"Fundamental Change".................................................3.8(a)
"Fundamental Change Purchase Date"...................................3.8(a)
"Fundamental Change Purchase Notice".............................. .3.8(c)
"Fundamental Change Purchase Price"..................................3.8(a)
"Indenture"........................................................Preamble
"Interest Payment Date".................................................6.1
"issuer tender offer"..................................................3.11
"Legal Holiday".........................................................9.7
"Notice of Default".....................................................4.1
"Notes".................................................................2.1
"Notes Payment".........................................................8.2
"Option Exercise Date"..................................................6.1
"Paying Agent"..........................................................2.4
"payment in full"......................................................8.16
"Proceeding"............................................................8.2
"Purchase Date"......................................................3.7(a)
"Purchase Notice"....................................................3.7(a)
"Purchase Price".....................................................3.7(a)
"Registrar".............................................................2.4
"Regular Record Date"...................................................6.1
"Restated Principal Amount".............................................6.1
"Rights"...............................................................7.19
"Rights Agreement".....................................................7.19
"Sale Price".........................................................3.7(d)
"Securities Act".....................................................3.7(d)
"Tax Event Date"........................................................6.1
"Time of Determination".................................................7.7
"Trustee"..........................................................Preamble
Article 2
THE NOTES
Section 2.1. Title of the Securities. There shall be a series of Securities
designated the "Convertible Subordinated Notes due 2019" (the "Notes").
Section 2.2. Limitation on Aggregate Principal Amount at Maturity of the Notes.
The aggregate Principal Amount at Maturity of the Notes shall be limited to
$2,607,663,000.
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 at
Maturity and integral multiples of $1,000. The form of legend on the Notes shall
be as set forth in Exhibit A.
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. Initially, the Trustee will act as Paying Agent, Conversion Agent and
Registrar and State Street Bank and Trust Company, N.A., New York, New York will
act as an additional paying agent.
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 therefor.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or co-registrar.
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 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
REDEMPTION AND PURCHASES
Section 3.1. Right to Redeem; Notices to Trustee. The Company, at its option,
may redeem the Notes in accordance with the provisions of paragraphs 5 and 7 of
the Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee in writing of the Redemption Date, the
Principal Amount at Maturity of Notes to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for
in this Section 3.1 by a Company Order, in the case of any redemption of less
than all of the Notes, at least 20 Business Days before the Redemption Date and,
in the case of any redemption of all of the Notes, on or prior to the date of
notice to the Holders of the Notes of redemption pursuant to Section 3.3 (in
each case, unless a shorter notice shall be satisfactory to the Trustee).
Section 3.2. 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 pro rata or by
lot or by any other method the Trustee considers fair and appropriate (so long
as such method is not prohibited by the rules of any stock exchange on which the
Notes are then listed, as notified in writing to the Trustee by the Company).
The Trustee shall make the selection at least 15 days but not more than 60 days
before the Redemption Date from outstanding Notes not previously called for
redemption. Notes and portions of them the Trustee selects shall be in Principal
Amounts at Maturity of $1,000 or an integral multiple 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 redeemed.
If any Note selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Note so selected, the converted portion of such Note shall be deemed (so far
as may be) to be the portion selected for redemption. Notes which have been
converted during a selection of Notes to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.
Section 3.3. Notice of Redemption. At least 20 Business Days but not more than
60 days before a Redemption Date, the Company shall provide a notice of
redemption by first class mail to the Holders of the Note and by publication in
The Wall Street Journal and notice on the Company's Web site.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Notes called for redemption may be converted at any time before
the close of business on the Redemption Date;
(6) that Holders who want to convert Notes must satisfy the requirements
set forth in paragraph 8 of the Notes;
(7) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Notes are to be redeemed, the
certificate number and Principal Amounts at Maturity of the particular
Notes to be redeemed;
(9) that, unless the Company defaults in making payment of such Redemption
Price, Original Issue Discount on Notes called for redemption, and
interest, if any, will cease to accrue on and after the Redemption
Date; and
(10) the CUSIP number of the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least ten (10) Business Days prior to such notice
of redemption (unless a shorter advance notice is acceptable to the Trustee) and
provided that the Company shall prepare and provide to the Trustee such notice
(or, if acceptable to the Trustee, provides sufficient information to allow for
the preparation of such notice by the Trustee).
Section 3.4. Effect of Notice of Redemption. Once notice of redemption is given,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price stated in the notice except for Notes which are converted
in accordance with the terms of this Indenture. Upon surrender to the Paying
Agent, such Notes shall be paid at the Redemption Price stated in the notice.
Section 3.5. Deposit of Redemption Price. Prior to or on the Redemption Date,
the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of all
Notes to be redeemed on that date other than Notes or portions of Notes called
for redemption which on or prior thereto have been delivered by the Company to
the Trustee for cancellation or have been converted. The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Notes pursuant to Article 7. If such money is
then held by the Company in trust and is not required for such purpose, it shall
be discharged from such trust.
Section 3.6. Notes Redeemed in Part. Upon surrender of a Note that is redeemed
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder a new Note in an authorized denomination equal in
Principal Amount at Maturity to the unredeemed portion of the Note surrendered.
Section 3.7. Purchase of Notes at Option of the Holder.
(a) General. Notes shall be purchased by the Company pursuant to paragraph 6 of
the Notes as of December 6, 2004 (the "Purchase Date"), at the purchase price
specified therein (the "Purchase Price"), at the option of the Holder thereof,
upon:
(1) delivery to the Paying Agent (and the Trustee, if different than the
Paying Agent) by the Holder of a written notice of purchase (a
"Purchase Notice") at any time from the opening of business on the date
that is 20 Business Days prior to the Purchase Date until the close of
business on such Purchase Date stating:
(A) the certificate number of the Note which the Holder will deliver
to be purchased,
(B) the portion of the Principal Amount at Maturity of the Note which
the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof,
(C) that such Note shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in paragraph 6 of
the Notes and in this Indenture, and
(D) in the event the Company elects, pursuant to Section 3.7(b), to
pay the Purchase Price to be paid as of such Purchase Date, in
whole or in part, in shares of Common Stock but such portion of
the Purchase Price shall ultimately be payable to such Holder
entirely in cash because any of the conditions to payment of the
Purchase Price in Common Stock is not satisfied prior to the
close of business on such Purchase Date, as set forth in Section
3.7(d), whether such Holder elects (i) to withdraw such Purchase
Notice as to some or all of the Notes to which such Purchase
Notice relates (stating the Principal Amount at Maturity and
certificate numbers of the Notes as to which such withdrawal
shall relate), or (ii) to receive cash in respect of the entire
Purchase Price for all Notes (or portions thereof) to which such
Purchase Notice relates; and
(2) delivery of such Note (or surrender of the beneficial interest therein
pursuant to Paragraph 7 of the DTC Letter of Representations) to the
Paying Agent prior to, on or after the Purchase Date (together with all
necessary endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the Purchase
Price therefor; provided, however, that such Purchase Price shall be so
paid pursuant to this Section 3.7 only if the Note so delivered to the
Paying Agent shall conform in all respects to the description thereof
in the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 3.9, fails to indicate such Holder's choice with respect to the election
set forth in clause (D) of Section 3.7(a)(1), such Holder shall be deemed to
have elected to receive cash in respect of the Purchase Price for all Notes
subject to such Purchase Notice in the circumstances set forth in such clause
(D).
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.7, a portion of a Note if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.7 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Purchase Date and the time of delivery of the Note (or surrender of the
beneficial interest therein pursuant to Paragraph 7 of the DTC Letter of
Representations).
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this Section
3.7(a) shall have the right to withdraw such Purchase Notice at any time prior
to the close of business on the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price. The Notes to
be purchased pursuant to Section 3.7(a) may be paid for, at the election of the
Company, in U.S. legal tender ("cash") or Common Stock, or in any combination of
cash and Common Stock, subject to the conditions set forth in Sections 3.7(c)
and (d). The Company shall designate, in the Company Notice delivered pursuant
to Section 3.7(e), whether the Company will purchase the Notes for cash or
Common Stock, or, if a combination thereof, the percentages of the Purchase
Price of Notes in respect of which it will pay in cash or Common Stock; provided
that the Company will pay cash for fractional interests in Common Stock. For
purposes of determining the existence of potential fractional interests, all
Notes subject to purchase by the Company held by a Holder shall be considered
together (no matter how many separate certificates are to be presented). Each
Holder whose Notes are purchased pursuant to this Section 3.7 shall receive the
same percentage of cash or Common Stock in payment of the Purchase Price for
such Notes, except (i) as provided in Section 3.7(d) with regard to the payment
of cash in lieu of fractional shares of Common Stock and (ii) in the event that
the Company is unable to purchase the Notes of a Holder or Holders for Common
Stock because any necessary qualifications or registrations of the Common Stock
under applicable state securities laws cannot be obtained, the Company may
purchase the Notes of such Holder or Holders for cash. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
Company Notice to Holders of the Notes except pursuant to this Section 3.7(b) or
pursuant to Section 3.7(d) in the event of a failure to satisfy, prior to the
close of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date,
the Company shall deliver a written notice to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.7(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Common Stock, that the conditions to
such manner of payment set forth in Section 3.7(d) have been or will be
complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.7(e).
(c) Purchase with Cash. On the Purchase Date, at the option of the Company, the
Purchase Price of Notes in respect of which a Purchase Notice pursuant to
Section 3.7(a) has been given, or a specified percentage thereof, may be paid by
the Company with cash equal to the aggregate Purchase Price of such Notes. If
the Company elects to purchase Notes with cash, the Company Notice, as provided
in Section 3.7(e), shall be sent to Holders not less than 20 Business Days prior
to such Purchase Date (the "Company Notice Date").
(d) Payment by Issuance of Common Stock. On the Purchase Date, at the option of
the Company, the Purchase Price of Notes in respect of which a Purchase Notice
pursuant to Section 3.7(a) has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Common Stock
equal to the quotient obtained by dividing (i) the amount of cash to which the
Holders of the Notes would have been entitled had the Company elected to pay all
or such specified percentage, as the case may be, of the Purchase Price of such
Notes in cash by (ii) the Average Market Price of a share of Common Stock,
determined with respect to the Purchase Date (and as certified to the Trustee by
the Officer's Certificate of the Company) subject to the next succeeding
paragraph.
The Company will not issue a fractional share of Common Stock
in payment of the Purchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Average Market Price
by such fraction and rounding the product to the nearest whole cent. It is
understood that if a Holder elects to have more than one Note purchased, the
number of shares of Common Stock shall be based on the aggregate amount of Notes
to be purchased.
If the Company elects to purchase the Notes by the issuance of
shares of Common Stock, the Company Notice, as provided in Section 3.7(e), shall
be sent to the Holders not later than the Company Notice Date.
The Company's right to exercise its election to purchase the
Notes pursuant to Section 3.7 through the issuance of shares of Common Stock
shall be conditioned upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
Notes with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be
issued in respect of the payment of the Purchase Price under the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
each case, if required;
(iii) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel each stating that (A) the terms of the
issuance of the Common Stock are in conformity with this Indenture and
(B) the shares of Common Stock to be issued by the Company in payment
of the Purchase Price in respect of Notes have been duly authorized
and, when issued and delivered pursuant to the terms of this Indenture
in payment of the Purchase Price in respect of the Notes, will be
validly issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights, and, in the case of
such Officers' Certificate, stating that conditions (i), (ii) and (iii)
above and the condition set forth in the second succeeding sentence
have been satisfied and, in the case of such Opinion of Counsel,
stating that conditions (ii) and (iii) above has been satisfied.
Such Officers' Certificate shall also set forth the number of shares of Common
Stock to be issued for each $1,000 Principal Amount at Maturity of Notes and the
Sale Price of a share of Common Stock on each trading day falling within the
period during which the Average Market Price is calculated, and the Average
Market Price of a share of Common Stock (taking into account any necessary
adjustments pursuant to Article 7). The Company may pay the Purchase Price (or
any portion thereof) in Common Stock only if the information necessary to
calculate the Average Market Price is published in a daily newspaper of national
circulation. If the foregoing conditions are not satisfied with respect to a
Holder or Holders prior to the close of business on the Purchase Date and the
Company has elected to purchase the Notes pursuant to this Section 3.7 through
the issuance of shares of Common Stock, the Company shall pay the entire
Purchase Price of the Notes of such Holder or Holders in cash. The Trustee shall
be under no duty to verify or recalculate any information set forth in such
Officers' Certificate.
The "Average Market Price" means the average of the Sale
Prices of the Common Stock for the five trading day period ending on the third
Business Day prior to the relevant Purchase Date or the date of the transaction
or event with respect to which the Average Market Price is to be determined, as
the case may be, or if such day is not a trading day then on the last trading
day prior to such day, appropriately adjusted to take into account the
occurrence, during the period commencing on the first of such trading days
during such five trading day period and ending on such Purchase Date, of any
event described in Section 7.6, 7.7 or 7.8; subject, however, to the conditions
set forth in Sections 7.9 and 7.10. The Trustee shall be entitled to rely
conclusively, in good faith, upon the Company's certification of Average Market
Price set forth in the relevant Officers' Certificate.
"Sale Price" means, for any given day, the last reported per
share sale price (or, if no sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid
and average ask prices) on such day of the Common Stock on the New York Stock
Exchange Composite Tape or, in the event shares of Common Stock are not listed
on the New York Stock Exchange, in the composite transactions for such other
national or regional securities exchange upon which the Common Stock is listed,
or, if the shares of Common Stock are not listed on a national or regional
securities exchange, as quoted on the National Association of Notes Dealers
Automated Quotation System or by the National Quotation Bureau Incorporated. In
the absence of such quotations, the Company shall be entitled to determine the
Sale Price on the basis of such quotations as it considers appropriate. The
Trustee shall be entitled to rely exclusively upon the Company's certification
of Sale Price set forth in the Officer's Certificate provided for above.
(e) Notice of Election. The Company's notice of election to purchase with cash
or Common Stock or any combination thereof shall be sent to the Holders in the
manner provided in Section 9.1 at the time specified in Section 3.7(c) or (d),
as applicable (the "Company Notice"). The Company Notice will also be published
in The Wall Street Journal and posted on the Company's web site. Such Company
Notice shall state the manner of payment elected and shall contain the following
information:
In the event the Company has elected to pay the Purchase Price
(or a specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with an Average Market
Price determined as of a specified date prior to the Purchase Date
equal to such specified percentage of the Purchase Price of the Notes
held by such Holder (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Average Market Price of the Common
Stock; and
(3) state that because the Average Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market
risk with respect to the value of the Common Stock to be received from
the date such Average Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of
Purchase Notice to be completed by a Holder of the Notes and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Notes as to which a Purchase Notice has been given may
be converted pursuant to Article 7 hereof only if the
applicable Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(iv) that Notes must be surrendered (by means of book entry
delivery, if applicable) to the Paying Agent to collect
payment;
(v) that the Purchase Price for any security as to which a
Purchase Notice has been given and not withdrawn will be
paid promptly following the later of the Purchase Date and
the time of surrender of such Note as described in (iv);
(vi) the procedures the Holder must follow to exercise rights
under Section 3.7 and a brief description of those rights;
(vii) briefly, the conversion rights of the Notes; and
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal
pursuant to the terms of Section 3.7(a)(1)(D) or Section
3.9).
At the Company's request, the Trustee shall give such Company
Notice in the Company's name and at the Company's expense; provided, however,
that, in all cases, the text of such Company Notice shall be prepared by the
Company.
Upon determination of the actual number of shares of Common
Stock to be issued for each $1,000 Principal Amount at Maturity of Notes, the
Company will publish such determination on the Company's Web site on the World
Wide Web.
(f) Covenants of the Company. All shares of Common Stock delivered upon purchase
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.
The Company shall use its best efforts to list or cause to
have quoted any shares of Common Stock to be issued to purchase Notes on each
national securities exchange or over-the-counter or other domestic market on
which the Common Stock is then listed or quoted.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect of a
cash purchase under Section 3.7(c) or for fractional interests, as applicable)
or shares of Common Stock, or a combination thereof, as applicable, at the time
and in the manner as provided in Section 3.10, sufficient to pay the aggregate
Purchase Price of all Notes to be purchased pursuant to this Section 3.7. As
soon as practicable after the Purchase Date, the Company shall deliver to each
Holder entitled to receive Common Stock through the Paying Agent, a certificate
for the number of full shares of Common Stock issuable in payment of the
Purchase Price and cash in lieu of any fractional interests. The person in whose
name the certificate for Common Stock is registered shall be treated as a holder
of record of shares of Common Stock on the Business Day following the Purchase
Date. Subject to Section 3.7(d), no payment or adjustment will be made for
dividends on the Common Stock the record date for which occurred on or prior to
the Purchase Date.
(h) Taxes. If a Holder of a Note is paid in Common Stock, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on such issue of
shares of Common Stock. However, the Holder shall pay any such tax which is due
because the Holder requests the shares of Common Stock to be issued in a name
other than the Holder's name. The Paying Agent may refuse to deliver the
certificates representing the Common Stock being issued in a name other than the
Holder's name until the Paying Agent receives a sum sufficient to pay any tax
which will be due because the shares of Common Stock are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
Section 3.8. Purchase of Notes at Option of the Holder upon Fundamental Change.
(a) If on or after December 6, 1999 there shall have occurred a Fundamental
Change, Notes shall be purchased by the Company, at the option of the Holder
thereof, at the purchase price specified in paragraph 6 of the Notes (the
"Fundamental Change Purchase Price"), as of the date that is 40 Business Days
after the occurrence of the Fundamental Change (the "Fundamental Change"),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.8(c).
A "Fundamental Change" means the occurrence of any transaction
or event in connection with which all or substantially all Common Stock shall be
exchanged for, converted into, acquired for or constitute solely the right to
receive (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) consideration which is not all or substantially all common stock
listed (or, upon consummation of or immediately following such transaction or
event which will be listed) on a United States national securities exchange or
approved for quotation on the NASDAQ National Market or any similar United
States system or automated dissemination of quotations of securities prices.
(b) Within 15 Business Days after the occurrence of a
Fundamental Change, the Company shall mail a written notice of Fundamental
Change by first-class mail to the Trustee and to each Holder. The notice shall
include a form of Fundamental Change Purchase Notice to be completed by the
Holder of the Notes and shall state:
(1) briefly, the events causing a Fundamental Change and the date of such
Fundamental Change;
(2) the date by which the Fundamental Change Purchase Notice pursuant to
this Section 3.8 must be given;
(3) the Fundamental Change Purchase Date;
(4) the Fundamental Change Purchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Notes as to which a Fundamental Change Purchase Notice has been
given may be converted pursuant to Article 7 hereof only if the
Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(8) that Notes must be surrendered by means of book entry delivery to the
Paying Agent to collect payment;
(9) that the Fundamental Change Purchase Price for any Note as to which a
Fundamental Change Purchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Fundamental
Change Purchase Date and the time of surrender of such Note as
described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.8;
(11) briefly, the conversion rights of the Notes; and
(12) the procedures for withdrawing a Fundamental Change Purchase Notice.
(c) Subject to the provisions of Paragraph 7 of the DTC Letter
of Representations, a Holder may exercise such Holder's rights specified in
Section 3.8(a) upon delivery of a written notice of purchase (a "Fundamental
Change Purchase Notice") to the Paying Agent at any time prior to the close of
business on the Fundamental Change Purchase Date, stating:
(1) the certificate number of the Note which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the Note
which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and
(3) that such Note shall be purchased pursuant to the terms and
conditions specified in paragraph 6 of the Notes.
The delivery of such Note to the Paying Agent (or surrender of
the beneficial interest therein pursuant to Paragraph 7 of the DTC Letter of
Representations) prior to, on or after the Fundamental Change Date (together
with all necessary endorsements) at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Fundamental Change Purchase Price
therefor; provided, however, that such Fundamental Change Purchase Price shall
be so paid pursuant to this Section 3.8 only if the Note so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth
in the related Fundamental Change Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.8, a portion of a Note if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Fundamental Change Purchase Date and the time of delivery of the Note (or
surrender of the beneficial interest therein pursuant to Paragraph 7 of the DTC
Letter of Representations) to the Paying Agent in accordance with this Section
3.8.
Notwithstanding anything herein to the contrary, and subject
to the provisions of the DTC Letter of Representations, any Holder delivering to
the Paying Agent the Fundamental Change Purchase Notice contemplated by this
Section 3.8(c) shall have the right to withdraw such Fundamental Change Purchase
Notice at any time prior to the close of business on the Fundamental Change
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company (and the
Trustee, if different than the Paying Agent) in writing of the receipt by it of
any Fundamental Change Purchase Notice or written withdrawal thereof.
Section 3.9. Effect of Purchase Notice or Fundamental Change Purchase Notice.
Upon receipt by the Paying Agent of the Purchase Notice or Fundamental Change
Purchase Notice specified in Section 3.7(a) or Section 3.8(c), as applicable,
the Holder of the Note in respect of which such Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, was given shall (unless such
Purchase Notice or Fundamental Change Purchase Notice is withdrawn as specified
in the following two paragraphs) thereafter be entitled to receive solely the
Purchase Price or Fundamental Change Purchase Price, as the case may be, with
respect to such Note. Such Purchase Price or Fundamental Change Purchase Price
shall be paid to such Holder, subject to receipts of funds and/or securities by
the Paying Agent, promptly following the later of (x) the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, with respect to such Note
(provided the conditions in Section 3.7 or Section 3.8, as applicable, have been
satisfied) and (y) the time of delivery of such Note to the Paying Agent (or
surrender of the beneficial interest therein pursuant to Paragraph 7 of the DTC
Letter of Representations) by the Holder thereof in the manner required by
Section 3.7 or Section 3.8, as applicable. Notes in respect of which a Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, has been given
by the Holder thereof may not be converted pursuant to Article 7 hereof on or
after the date of the delivery of such Purchase Notice or Fundamental Change
Purchase Notice, as the case may be, unless such Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice or Fundamental Change Purchase Notice, as
the case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, at any time
prior to the close of business on the Purchase Date or the Fundamental Change
Purchase Date, as the case may be, specifying:
(1) the certificate number of the Note in respect of which such notice of
withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Note with respect to which
such notice of withdrawal is being submitted, and
(3) the Principal Amount at Maturity, if any, of such Note which remains
subject to the original Purchase Notice or Fundamental Change Purchase
Notice, as the case may be, and which has been or will be delivered
for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in
the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Purchase Notice pursuant to the terms of
Section 3.7(a)(1)(D) or (ii) a conditional withdrawal containing the information
set forth in Section 3.7(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Notes pursuant to Section
3.7 (other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu of fractional shares) or 3.8 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Notes, of the required Purchase Notice or Fundamental Change Purchase Notice, as
the case may be) and is continuing an Event of Default (other than a default in
the payment of the Purchase Price or Fundamental Change Purchase Price, as the
case may be, with respect to such Notes). The Paying Agent will promptly return
to the respective Holders thereof any Notes (x) with respect to which a Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Fundamental Change Purchase Price, as the case may be, with
respect to such Notes) in which case, upon such return, the Purchase Notice or
Fundamental Change Purchase Notice with respect thereto shall be deemed to have
been withdrawn.
Section 3.10. Deposit of Purchase Price or Fundamental Change Purchase Price.
Prior to 1:00 p.m. (local time in The City of New York) on the Business Day
following the Purchase Date or the Fundamental Change Purchase Date, as the case
may be, the Company shall deposit with the Trustee or with the Paying Agent (or,
if the Company or a Subsidiary or an Affiliate of either of them is acting as
the Paying Agent, shall segregate and hold in trust as provided in Section 2.4)
an amount of money (in immediately available funds if deposited on such Business
Day) or Common Stock, sufficient to pay the aggregate Purchase Price or
Fundamental Change Purchase Price, as the case may be, of all the Notes or
portions thereof which are to be purchased as of the Purchase Date or
Fundamental Change Purchase Date, as the case may be.
Section 3.11. Covenant to Comply With Securities Laws Upon Purchase of Notes. In
connection with any offer to purchase or purchase of Notes under Section 3.7 or
3.8 hereof (provided that such offer or purchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 under the
Exchange Act, (ii) file the related Schedule 13E-4 (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with all
Federal and state securities laws so as to permit the rights and obligations
under Sections 3.7 and 3.8 to be exercised in the time and in the manner
specified in Sections 3.7 and 3.8.
Section 3.12. Repayment to the Company. The Trustee and the Paying Agent shall
return to the Company any cash or shares of Common Stock that remain unclaimed
as provided in paragraph 13 of the Notes, together with dividends, if any,
received thereon, held by them for the payment of the Purchase Price or
Fundamental Change Purchase Price, as the case may be; provided, however, that
to the extent that the aggregate amount of cash or shares of Common Stock
deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase
Price or Fundamental Change Purchase Price, as the case may be, of the Notes or
portions thereof which the Company is obligated to purchase as of the Purchase
Date or Fundamental Change Purchase Date, as the case may be, then promptly
after the Business Day following the Purchase Date or Fundamental Change
Purchase Date, as the case may be, the Trustee shall return any such excess to
the Company.
Section 3.13. No Defeasance. The Notes shall not be subject to the provisions of
Article IV of the Base Indenture.
Section 3.14. Payment Terms; Place of Payment. The Principal Amount at Maturity
shall be payable on December 6, 2019 on any Note that has not been redeemed,
purchased or converted pursuant to this Indenture. Original Issue discount and,
if applicable, interest on the Notes shall accrue at the rate and be payable on
the date and on the terms described in Section 1 of the Notes. Principal of and
interest, if any, on the Notes shall be payable by the Paying Agent at the
places described in Section 3 of the Notes.
Section 3.15. Conversion Arrangement on Call for Redemption. In connection with
any redemption of Notes, the Company may arrange for the purchase and conversion
of any Notes called for redemption by an agreement with one or more investment
bankers or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the close of business on the Redemption
Date, an amount that, together with any amounts deposited with the Trustee by
the Company for the redemption of such Notes, is not less than the Redemption
Price of such Notes. Notwithstanding anything to the contrary contained in this
Article 3, the obligation of the Company to pay the Redemption Price of such
Notes shall be deemed to be satisfied and discharged to the extent such amount
is so paid by such purchasers. If such an agreement is entered into, any Notes
not duly surrendered for conversion by the Holders thereof may, at the option of
the Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the Redemption Date,
subject to payment of the above amount as aforesaid. The Trustee shall hold and
pay to the Holders whose Notes are selected for redemption any such amount paid
to it for purchase and conversion in the same manner as it would moneys
deposited with it by the Company for the redemption of Notes.
Article 4
DEFAULTS
Section 4.1. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of the Principal Amount at Maturity
(or, if the Notes have been converted to semiannual coupon notes
following a Tax Event pursuant to Article 6, the Restated Principal
Amount), Redemption Price, Purchase Price or Fundamental Change
Purchase Price on any Note when the same becomes due and payable at its
Stated Maturity, upon redemption, upon declaration, when due for
purchase by the Company or otherwise;
(2) after exercise of its option pursuant to Section 6.1 hereof following a
Tax Event, the Company defaults in the payment of interest upon any
Note when such interest becomes due and payable and such default
continues for a period of 30 days;
(3) the Company fails to comply with any of its agreements in the Notes or
this Indenture (other than those referred to in clauses (1) and (2)
above) and such failure continues for 90 days after receipt by the
Company of a Notice of Default;
(4) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such petition or the appointment of or
taking possession by a Custodian; or
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(B) appoints a Custodian of the Company or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
"Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clause (3) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate Principal Amount at Maturity of the Notes at the time outstanding
notify the Company and the Trustee in writing of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (3) above after actual receipt of such notice. Any such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default" (referred to herein as a "Notice of Default").
The Company shall deliver to the Trustee, within 30 days after
it becomes aware of the occurrence thereof, written notice of any event which
with the giving of notice or the lapse of time, or both, would become an Event
of Default under clause (3) above, its status and what action the Company is
taking or proposes to take with respect thereto.
If an Event of Default occurs (and, if required pursuant to
this Section 4.1, is continuing), the Trustee, or the Holders of at least 25% in
aggregate Principal Amount at Maturity of the Notes at the time outstanding, may
declare all the Notes to be due and payable immediately at the Issue Price plus
accrued Original Issue Discount or, if the Company has exercised its option to
convert the Notes pursuant to Section 6.1 of this Supplemental Indenture
following a Tax Event, the Restated Principal Amount plus accrued and unpaid
interest.
Article 5
Modification
Section 5.1. Without Consent of Holders. The Company and the Trustee may amend
this Supplemental Indenture or the Notes without the consent of any Holder of
the Notes:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article VII of the Base Indenture or Section 7.14
hereof;
(3) to provide for uncertificated Notes in addition to certificated Notes
so long as such uncertificated Notes are in registered form for
purposes of the Internal Revenue Code of 1986, as amended;
(4) to make any change that does not adversely affect the rights of any
Holder of the Notes;
(5) to add to the Company's covenants or obligations under the Indenture or
surrender any right, power or option conferred by the Indenture on the
Company; or
(6) to make any change to comply with the TIA, or any amendment thereto, or
to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
Section 5.2. With Consent of Holders. With the written consent of the Holders of
at least a majority in aggregate Principal Amount at Maturity of the Notes at
the time outstanding, the Company and the Trustee may amend this Supplemental
Indenture or the Notes. However, without the consent of each Holder of the Notes
affected, an amendment to this Supplemental Indenture or the Notes may not:
(1) make any change in the manner or rate of accrual in connection with
Original Issue Discount, reduce the rate of interest referred to in
paragraph 1 of the Notes, reduce the rate of interest referred to in
Section 6.1 upon the occurrence of a Tax Event, or extend the time for
payment of Original Issue Discount or interest, if any, on any Note;
(2) reduce the Principal Amount at Maturity, Restated Principal Amount or
the Issue Price of or extend the Stated Maturity of any Note;
(3) reduce the Redemption Price, Purchase Price or Fundamental Change
Purchase Price of any Note;
(4) make any Note payable in money or securities other than that stated in
the Note;
(5) make any change that adversely affects the right to convert any Note
(6) restrict a Holder's right to institute suit for the enforcement of any
payments or conversion; or
(7) make any change that adversely affects the right to require the Company
to purchase the Notes in accordance with the terms thereof and this
Indenture.
It shall not be necessary for the consent of the Holders under
this Section 5.2 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 5.2 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment.
Section 5.3. Revocation and Effect of Consents, Waivers and Actions. Until an
amendment, waiver or other action by Holders becomes effective, a consent
thereto by a Holder of a Note hereunder is a continuing consent by the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same obligation as the consenting Holder's Note, even if notation of the
consent, waiver or action is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Note or portion of the Note if the Trustee receives the notice of revocation
before the date the amendment, waiver or action becomes effective. After an
amendment, waiver or action becomes effective, it shall bind every Holder of the
Notes.
Section 5.4. General Requirements. In no instance shall the Trustee be obligated
to enter into, execute or deliver any supplement or amendment hereto which, in
its judgment, adversely affects its obligations, duties, liabilities or
immunities hereunder. In connection with any amendment hereof or supplement
hereto, the Trustee shall be entitled to receive from the Company an Opinion of
Counsel stating that, in such counsel's opinion, such amendment or supplement is
authorized or permitted hereunder, and under the Indenture, as applicable, and
all conditions precedent herein or therein contained and applicable to such
amendment or supplement have been satisfied.
Article 6
SPECIAL TAX EVENT CONVERSION
Section 6.1. Optional Conversion to Semiannual Coupon Note Upon Tax Event. At
the option of the Company, from and after (i) the date (the "Tax Event Date") of
the occurrence of a Tax Event and (ii) the date the Company exercises such
option, whichever is later (the "Option Exercise Date"), interest in lieu of
future Original Issue Discount shall accrue at the rate of 3.00 % per annum on a
restated principal amount per $1,000 original Principal Amount at Maturity (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date and shall be payable
semiannually on June 6 and December 6 of each year (each an "Interest Payment
Date") to holders of record at the close of business on May 22 or November 21
(each a "Regular Record Date") immediately preceding such Interest Payment Date.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months and will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from the Option Exercise Date.
Within 30 days of the occurrence of a Tax Event, the Company shall mail a
written notice of such Tax Event by first-class mail to the Trustee and no later
than 30 days prior to its exercise of such option the Company shall mail a
written notice of the Option Exercise Date by first-class mail to the Trustee
and Holders of the Notes; provided, however, that such notice shall include or
be accompanied by an Officer's Certificate of the Company certifying the
Restated Principal Amount (per $1,000 original Principal Amount at Maturity) and
the amount of interest payable thereon on each Interest Payment Date and at
Stated Maturity as a result of the exercise of such option. The Trustee shall be
under no obligation or duty to recalculate or verify such amounts. From and
after the Option Exercise Date, (i) the Company shall be obligated to pay at
Stated Maturity, in lieu of the Principal Amount at Maturity of a Note, the
Restated Principal Amount thereof and (ii) "Issue Price and accrued Original
Issue Discount," "Issue Price plus Original Issue Discount" or similar words, as
used herein, means Restated Principal Amount plus accrued and unpaid interest
with respect to any Note. Notes authenticated and delivered after the Option
Exercise Date may, and shall if required by the Trustee, bear a notation in a
form approved by the Trustee as to the conversion of the Notes to semiannual
coupon notes. On or after the Option Exercise Date, the Company may require
Holders to tender their Notes to the Trustee in exchange for amended Notes
stating the Restated Principal Amount thereof and reflecting the other changes
to the terms of the Notes specified herein.
Section 6.2. Payment of Interest; Interest Rights Preserved. (a) Interest on any
Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the person in whose name that Note 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. Each
installment of interest on any Note shall be paid in same-day funds by transfer
to an account maintained by the payee located inside the United States. In the
case of a Global Note, interest payable on any Interest Payment Date will be
paid to DTC, with respect to that portion of such permanent Global Note held for
its account by Cede & Co. for the purpose of permitting such party to credit the
interest received by it in respect of such permanent Global Note to the accounts
of the beneficial owners thereof.
(b) Except as otherwise specified with respect to the Notes, any interest on any
Note that is payable, but is not punctually paid or duly provided for, within 30
days following on any Interest Payment Date (herein called "Defaulted Interest,"
which term shall include any accrued and unpaid interest that has accrued on
such defaulted amount in accordance with paragraph 1 of the Notes), shall
forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, as its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
persons in whose names the Notes 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 Note and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Notes at such Holder's address as it appears on the list of Holders of
the Notes maintained pursuant to Section 2.4 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names the Notes are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Notes in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such
notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 3.5 of the Base Indenture, each Note delivered under this Supplemental
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Note shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note.
Article 7
CONVERSION
Section 7.1. Conversion Privilege. A Holder of a Note may convert such Note into
Common Stock at any time during the period stated in paragraph 8 of the Notes.
The number of shares of Common Stock issuable upon conversion of a Note per
$1,000 of Principal Amount at Maturity thereof (the "Conversion Rate") shall be
that set forth in paragraph 8 in the Notes, subject to adjustment as herein set
forth.
A Holder may convert a portion of the Principal Amount at
Maturity of a Note if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Note also
apply to conversion of a portion of a Note.
Section 7.2. Conversion Procedure. To convert a Note, a Holder must satisfy the
requirements in paragraph 8 of the Notes. The date on which the Holder satisfies
all those requirements is the conversion date (the "Conversion Date"). As soon
as practicable after the Conversion Date, the Company shall deliver to the
Holder, through the Conversion Agent, a certificate for the number of full
shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional share determined pursuant to Section 7.3; and shall certify to the
Conversion Agent and the Trustee the amount of Notes (and related Holder) so
converted, and shall certify that such conversion has been completed in
compliance with the terms hereof. The person in whose name the certificate is
registered shall be treated as a stockholder of record on and after the
Conversion Date; provided, however, that 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 or persons entitled to receive the shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate 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. Upon conversion of a Note, such person shall no longer be a
Holder of such Note. Neither the Trustee nor Calculation Agent shall be under
any duty or obligation to verify or recalculate the Company's determination of
the number of shares of Common Stock issuable upon conversion (or cash amount
payable in respect of fractional shares).
No payment or adjustment will be made for dividends on, or
other distributions with respect to, any Common Stock except as provided in this
Article 7. On conversion of a Note, that portion of accrued Original Issue
Discount (or interest, if the Company has exercised its option provided for in
Section 6.1) attributable to the period from the Issue Date (or, if the Company
has exercised the option provided for in Section 6.1, the later of (x) the date
of such exercise and (y) the date on which interest was last paid) of the Note
through the Conversion Date with respect to the converted Note shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the Note
being converted pursuant to the provisions hereof; and the fair market value of
such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for Original Issue Discount (or interest, if the Company has exercised
its option provided for in Section 6.1) accrued through the Conversion Date, and
the balance, if any, of such fair market value of such Common Stock (and any
such cash payment) shall be treated as issued in exchange for the Issue Price of
the Note being converted pursuant to the provisions hereof.
If the Holder converts more than one Note at the same time,
the number of shares of Common Stock issuable upon the conversion shall be based
on the total Principal Amount at Maturity of the Notes converted.
If the last day on which a Note may be converted is a Legal
Holiday, the Note may be surrendered on the next succeeding day that is not a
Legal Holiday.
Upon surrender of a Note that is converted in part, the
Company shall execute, and upon Company order the Trustee shall authenticate and
deliver to the Holder, a new Note in an authorized denomination equal in
Principal Amount at Maturity to the unconverted portion of the Note surrendered.
Section 7.3. Fractional Shares. The Company will not issue a fractional share of
Common Stock upon conversion of a Note. Instead, the Company will deliver cash
for the current market value of the fractional share. The current market value
of a fractional share shall be determined, to the nearest 1/1,000th of a share,
by multiplying the Sale Price, on the last trading day prior to the Conversion
Date, of a full share by the fractional amount and rounding the product to the
nearest whole cent.
Section 7.4. Taxes on Conversion. If a Holder converts a Note, the Company shall
pay any documentary, stamp or similar issue or transfer tax due on the issue of
shares of Common Stock upon the conversion. However, the Holder shall pay any
such tax which is due because the Holder requests the shares to be issued in a
name other than the Holder's name. The Conversion Agent may refuse to deliver
the certificates representing the Common Stock being issued in a name other than
the Holder's name until the Conversion Agent receives a sum sufficient to pay
any tax which will be due because the shares are to be issued in a name other
than the Holder's name. Nothing herein shall preclude any tax withholding
required by law or regulations.
Section 7.5. Company to Provide Stock. The Company shall, prior to issuance of
any Notes under this Article 7, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Notes.
All shares of Common Stock delivered upon conversion of the
Notes shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Notes, if any, and will list or cause to have quoted
such shares of Common Stock on each national securities exchange or in the
over-the-counter market or such other market on which the Common Stock is then
listed or quoted.
Section 7.6. Adjustment for Change in Capital Stock. If, after the Issue Date of
the Notes, the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater number
of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares;
(4) pays a dividend or makes a distribution on its Common Stock in shares
of its Capital Stock (other than Common Stock or rights, warrants or
options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Note thereafter
converted may receive the number of shares of Capital Stock of the Company which
such Holder would have owned immediately following such action if such Holder
had converted the Note immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment a Holder of a Note upon conversion of
such Note may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article 7 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 7.
Section 7.7. Adjustment for Rights Issue. If, after the Issue Date of the Notes,
the Company distributes any rights, warrants or options to all holders of its
Common Stock entitling them, for a period expiring within 60 days after the
record date for such distribution, to purchase shares of Common Stock at a price
per share less than the Sale Price as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R x (O + N)
--------------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record
date for the distribution to which this Section 7.7 is being
applied.
N = the number of additional shares of Common Stock offered pursuant to
the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 7.6(4) applies or (ii) a
distribution to which Section 7.8 applies, for which, in each
case, (x) the record date shall occur on or before the record
date for the distribution to which this Section 7.7 applies and
(y) the Ex-Dividend Time shall occur on or after the date of the
Time of Determination for the distribution to which this Section
7.7 applies, the fair market value (on the record date for the
distribution to which this Section 7.7 applies) of the
(1) Capital Stock of the Company distributed in respect of each share of
Common Stock in such Section 7.6(4) distribution and
(2) assets of the Company or debt securities or any rights, warrants or
options to purchase securities of the Company distributed in respect of
each share of Common Stock in such Section 7.8 distribution.
"Average Sale Price" means the average of the Sale Prices of the
Common Stock for the shortest of:
(i) 30 consecutive trading days ending on the last full
trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated,
(ii) the period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights, warrants or
options or (b) the distribution, in each case, in respect of which the
Average Sale Price is being calculated and (y) proceeding through the
last full trading day prior to the Time of Determination with respect
to the rights, warrants or options or distribution in respect of which
the Average Sale Price is being calculated (excluding days within such
period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding (a)
issuance of rights, warrants or options or (b) distribution, in each
case, for which an adjustment is required by the provisions of Section
7.06(4), 7.07 or 7.08 and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such period, if
any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 7.6(1), (2), (3) or (5) applies occurs during
the period applicable for calculating "Average Sale Price" pursuant to the
definition in the preceding sentence, "Average Sale Price" shall be calculated
for such period in a manner determined by the Board of Directors to reflect the
impact of such dividend, subdivision, combination or reclassification on the
Sale Price of the Common Stock during such period.
"Time of Determination" means the time and date of the earlier
of (i) the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 7.7 or 7.8 applies and
(ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock is then listed or quoted.
The Board of Directors shall determine fair market values for
the purposes of this Section 7.7.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
rights, warrants or options to which this Section 7.7 applies. If all of the
shares of Common Stock subject to such rights, warrants or options have not been
issued when such rights, warrants or options expire, then the Conversion Rate
shall promptly be readjusted to the Conversion Rate which would then be in
effect had the adjustment upon the issuance of such rights, warrants or options
been made on the basis of the actual number of shares of Common Stock issued
upon the exercise of such rights, warrants or options.
No adjustment shall be made under this Section 7.7 if the
application of the formula stated above in this Section 7.7 would result in a
value of R' that is equal to or less than the value of R.
Section 7.8. Adjustment for Other Distributions. If, after the Issue Date of the
Notes, the Company distributes to all holders of its Common Stock any of its
assets, or debt securities or any rights, warrants or options to purchase
securities of the Company (including securities or cash, but excluding (x)
distributions of Capital Stock referred to in Section 7.6 and distributions of
rights, warrants or options referred to in Section 7.7 and (y) cash
distributions that are not Extraordinary Cash Dividends) the Conversion Rate
shall be adjusted, subject to the provisions of the last paragraph of this
Section 7.8, in accordance with the formula:
R' = R x M
--------------
M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution to
which Section 7.6(4) applies, for which (i) the record date shall
occur on or before the record date for the distribution to which
this Section 7.8 applies and (ii) the Ex-Dividend Time shall
occur on or after the date of the Time of Determination for the
distribution to which this Section 7.8 applies, the fair market
value (on the record date for the distribution to which this
Section 7.8 applies) of any Capital Stock of the Company
distributed in respect of each share of Common Stock in such
Section 7.6(4) distribution.
F = the fair market value (on the record date for the distribution
to which this Section 7.8 applies) of the assets, securities,
rights, warrants or options to be distributed in respect of each
share of Common Stock in the distribution to which this Section
7.8 is being applied (including, in the case of cash dividends or
other cash distributions giving rise to an adjustment, all such
cash distributed concurrently).
The Board of Directors shall determine fair market values for
the purposes of this Section 7.8.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
distribution to which this Section 7.8 applies.
The term "Extraordinary Cash Dividend" means any distribution
of cash with respect to the Common Stock (a) that is made upon a merger or
consolidation or a sale or transfer of all or substantially all of the assets of
the Company or (b) the amount of which, together with (i) the aggregate amount
of any other distributions to all holders of Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to this Article 7 has been made and
(ii) the aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors filed with the Trustee) of consideration
payable in respect of any tender offer by the Company or any of its Subsidiaries
for all or any portion of the Common Stock concluded within the 12 months
preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to this article 7 has been made, exceeds 12.5% of the
product of the Sale Price of the Common Stock on the date prior to the
Ex-Dividend Time with respect to such distribution times the number of shares of
Common Stock outstanding on such date. Upon the distribution of an Extraordinary
Cash Dividend, an adjustment shall be made pursuant to this Article 7 for an
amount equal to the sum of (x) the amount of such Extraordinary Cash Dividend
and (y) any distribution described in clause (i) or (ii) of the preceding
sentence for which no prior adjustment has been made.
In making the determinations required by items (i) and (ii)
above, the amount of cash dividends paid on a per share basis shall be
appropriately adjusted to reflect the occurrence during such period of any event
described in this Article 7.
In the event that, with respect to any distribution to which
this Section 7.8 would otherwise apply, the difference "M-F" as defined in the
above formula is less than $1.00 or "F" is equal to or greater than "M," then
the adjustment provided by this Section 7.8 shall not be made and in lieu
thereof the provisions of Section 7.14 shall apply to such distribution.
Section 7.9. When Adjustment May Be Deferred. No adjustment in the Conversion
Rate need be made unless the adjustment would require an increase or decrease of
at least 1% in the Conversion Rate. Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 7 shall be made to the
nearest cent or to the nearest 1/1,000th of a share, as the case may be.
Section 7.10. When No Adjustment Required. No adjustment need be made for a
transaction referred to in Section 7.6, 7.7, 7.8 or 7.14 if Holders of the Notes
are to participate in the transaction on a basis and with notice that the Board
of Directors determines to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction. Such
participation by Holders of the Notes may include participation upon conversion
provided that an adjustment shall be made at such time as the Holders of the
Notes are no longer entitled to participate. Without limiting the generality of
the foregoing, Holders of the Notes shall be deemed to participate in a
distribution of assets described in the first paragraph of Section 7.8 (other
than debt securities or rights, warrants or options to purchase securities of
the Company) on a fair and appropriate basis if the Company enters into a
supplemental indenture providing that the Holder of a Note may convert it into
the kind and amount of securities, cash or other assets which such Holder would
have received immediately after such distribution of assets if such Holder had
converted the Note immediately before the effective date of the transaction and
providing for adjustments in the event of changes in capital stock, rights
issues or other distributions or dilutive events affecting such distributed
assets analogous to those provided for in respect of the Common Stock in this
Article 7 which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Article 7 with such notice to Holders of the
Notes of the basis upon which they will participate in the transaction as the
Board of Directors determines to be fair and appropriate.
No adjustment need be made for rights to 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.
To the extent the Notes become convertible pursuant to this
Article 7 into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
Section 7.11. Notice of Adjustment. Whenever the Conversion Rate is adjusted,
the Company shall promptly mail to the Trustee and Holders of the Notes a notice
of the adjustment. The Company shall file with the Trustee and the Conversion
Agent such notice and a certificate from the Company's independent public
accountants briefly stating the facts requiring the adjustment and the manner of
computing it. The certificate shall be conclusive evidence that the adjustment
is correct. Neither the Trustee nor any Conversion Agent shall be under any duty
or responsibility with respect to any such certificate except to exhibit the
same to any Holder desiring inspection thereof.
Section 7.12. Voluntary Increase. The Company from time to time may increase the
Conversion Rate by any amount for any period of time. Whenever the Conversion
Rate is increased, the Company shall mail to Holders of the Notes and file with
the Trustee and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or
adjust the Conversion Rate otherwise in effect for purposes of Section 7.6, 7.7
or 7.8.
Section 7.13. Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 7.6, 7.7 or 7.8 (unless no
adjustment is to occur pursuant to Section 7.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 7.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Holders of the Notes and file with the Trustee
and the Conversion Agent a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share exchange,
transfer, liquidation or dissolution. The Company shall file and mail the notice
at least 15 days before such date. Failure to file or mail the notice or any
defect in it shall not affect the validity of the transaction.
Section 7.14. Reorganization of Company; Special Distributions. If the Company
is a party to a transaction described in Article VII of the Base Indenture
(other than a sale of all or substantially all of the assets of the Company in a
transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash or other assets of the Company or
any other person) or a merger or binding share exchange which reclassifies or
changes its outstanding Common Stock, the person obligated to deliver
securities, cash or other assets upon conversion of Notes shall enter into a
supplemental indenture. If the issuer of securities deliverable upon conversion
of Notes is an Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Note may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the Note
immediately before the effective date of the transaction, assuming (to the
extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 7. The successor Company shall mail to Holders of
the Notes a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 7.6 nor 7.7 applies.
If the Company makes a distribution to all holders of its
Common Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
the last paragraph of Section 7.8, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 7.8, then, from and
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Holder of a Note that converts such Note in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Note is convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder
had converted the Note immediately prior to the record date for determining the
holders of Common Stock entitled to receive the distribution.
Section 7.15. Company Determination Final. Any determination that the Company or
the Board of Directors must make pursuant to Section 7.3, 7.6, 7.7, 7.8, 7.9,
7.10, 7.14 or 7.17 is conclusive.
Section 7.16. Trustee's Adjustment Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article 7 should be made, how it should
be made or what it should be. The Trustee has no duty to determine whether a
supplemental indenture under Section 7.14 need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall not be
accountable for and makes no representation as to the validity or value of any
securities or assets issued upon conversion of Notes. The Trustee shall not be
responsible for the Company's failure to comply with this Article 7. Each
Conversion Agent shall have the same protection under this Section 7.16 as the
Trustee.
Section 7.17. Simultaneous Adjustments. In the event that this Article 7
requires adjustments to the Conversion Rate under more than one of Section
7.6(4), 7.7 or 7.8, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 7.6, second, the provisions
of Section 7.8 and, third, the provisions of Section 7.7.
Section 7.18. Successive Adjustments. After an adjustment to the Conversion Rate
under this Article 7, any subsequent event requiring an adjustment under this
Article 7 shall cause an adjustment to the Conversion Rate as so adjusted.
Section 7.19. Rights Issued in Respect of Common Stock Issued Upon Conversion.
Each share of Common Stock issued upon conversion of Notes pursuant to this
Article 7 shall be entitled to receive the appropriate number of common stock or
preferred stock purchase rights, as the case may be (the "Rights"), if any, and
the certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a "Rights Agreement"). Provided that such
Rights Agreement requires that each share of Common Stock issued upon conversion
of Notes at any time prior to the distribution of separate certificates
representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 7, there shall not
be any adjustment to the conversion privilege or Conversion Rate as a result of
the issuance of Rights, the distribution of separate certificates representing
the Rights, the exercise or redemption of such Rights in accordance with any
such Rights Agreement, or the termination or invalidation of such Rights.
Article 8
SUBORDINATION
Section 8.1. 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 hereinafter set
forth in this Article (subject to the provisions of Article IV of the Base
Indenture), the indebtedness represented by the Notes, and the payment of the
principal of, interest on and all other amounts, if any, owing with respect to
each and all of the Notes are hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash or other immediately
available funds of all Senior Debt of the Company. The Notes shall rank pari
passu with the 4% Convertible Subordinated Notes due November 15, 2002 issued
under the Indenture dated as of November 17, 1997 between the Company and State
Street Bank and Trust Company, as trustee.
Section 8.2. Payment Over of Proceeds Upon Dissolution, Etc. In the event of (a)
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company, then and in any such event
specified in (a), (b) or (c) above (each such event, if any, herein sometimes
referred to as a "Proceeding") the holders of Senior Debt shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Debt, in cash or other immediately available funds or provision shall
be made for such payment in cash or other immediately available funds or
otherwise in a manner satisfactory to each holder of Senior Debt with respect to
its indebtedness, before the Holders of the Notes are entitled to receive any
payment or distribution of any kind or character, whether (i) in cash, property
or securities, on account of principal of, interest on or any other amount, if
any, owing with respect to the Notes or on account of any purchase or other
acquisition of Notes by the Company or any Subsidiary of the Company, (ii) by
way of cancellation, forgiveness or offset of the indebtedness evidenced by the
Notes against any indebtedness owed by a Holder to the Company or (iii) payable
or deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Notes (all such payments,
distributions, purchases and acquisitions herein referred to, individually and
collectively, as a "Notes Payment"), and to that end the holders of all Senior
Debt shall be entitled to receive, for application to the payment thereof, any
Notes Payment which may be payable or deliverable in respect of the Notes in any
such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Note shall have received any
Notes Payment before all Senior Debt is paid in full in cash or other
immediately available funds or otherwise in a manner satisfactory to each holder
of Senior Debt with respect to its indebtedness, and if such fact shall, at or
prior to the time of such Notes Payment, have been made actually known to a
responsible officer of the Trustee or, as the case may be, such Holder, then and
in such event such Notes Payment shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt, to the extent necessary to
pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment giving
effect to these subordination provisions authorized by an order or decree of a
court of competent jurisdiction in a reorganization proceeding under any
applicable bankruptcy law or of any other corporation provided for by such plan
of reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Notes are so subordinated as provided in this Article, which shall
require that (A) the final maturity of any such subordinated securities shall
exceed the term of the Senior Debt provided for by such plan of reorganization
or readjustment, and there shall not be any scheduled principal payment in
respect of such subordinated securities prior to that of such Senior Debt and
(B) such subordinated securities shall be unsecured and unguaranteed. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the
conveyance, transfer, sale or lease of all or substantially all of its
properties and assets to another Person upon the terms and conditions set forth
in Article VII of the Base Indenture shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance,
transfer, sale or lease such properties and assets, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer, sale or lease
comply with the conditions set forth in the Indenture.
Section 8.3. No Payment When Senior Debt in Default. In the event that any Notes
are declared or otherwise shall become due and payable before their Stated
Maturity (including by reason of a Fundamental Change) and there shall have
occurred (i) a default in the payment of principal, premium, if any, or interest
(including a default under any repurchase or redemption obligation) with respect
to any Senior Debt or (ii) any other event of default with respect to any Senior
Debt, permitting the holders thereof to accelerate the maturity thereof, then
and in such event the holders of the Senior Debt outstanding at the time such
Notes so become due and payable shall be entitled to receive payment in full of
all amounts then due on or in respect of all Senior Debt in cash or other
immediately available funds or otherwise in a manner satisfactory to the holders
of such Senior Debt, before the Holders of the Notes are entitled to receive any
Notes Payment.
In the event and during the continuation of any default in the
payment of any amount owing in respect of any Senior Debt beyond any applicable
grace period with respect thereto, or in the event that any event of default
with respect to any Senior Debt shall have occurred and be continuing permitting
the holders of such Senior Debt (or a trustee or other representative on behalf
of the holders thereof) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or in the
event any judicial proceeding shall be pending with respect to any such default
in payment or event of default, then no Notes Payment shall be made.
In the event that, notwithstanding the foregoing, the Company
shall make any Notes Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if (1) such fact shall, at or prior to
the time of such Notes Payment, have been made actually known to a responsible
officer of the Trustee or, as the case may be, such Holder or (2) the Notes have
been accelerated, then and in such event such Notes Payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Notes
Payment with respect to which Section 9.2 would be applicable.
Section 8.4. Payment Permitted If No Default. Nothing contained in this Article
or elsewhere in this Indenture or in any of the Notes shall prevent (a) the
Company, at any time except during the pendency of any proceeding referred to in
Section 9.2 or under the conditions described in Section 9.3, from making Notes
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Notes Payments or the retention of such Notes Payment by the
Holders, if, at the time of such application by the Trustee, it did not have
actual knowledge that such Notes Payment would have been prohibited by the
provisions of this Article.
Section 8.5. Subrogation to Rights of Holders of Senior Debt. Subject to the
payment in full of all amounts due or to become due on or in respect of Senior
Debt, in cash or other immediately available funds or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Notes shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
and distributions of cash, property and securities applicable to the Senior Debt
until the principal of and interest on the Notes shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Notes or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Notes or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Debt and the Holders of
the Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
Section 8.6. Provisions Solely To Define Relative Rights. The provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Holders of the Notes on the one hand and the holders of Senior
Debt on the other hand. Nothing contained in this Article or elsewhere in this
Supplemental Indenture or in the Notes is intended to or shall (a) impair, as
among the Company, the creditors of the Company other than holders of Senior
Debt and the Holders of the Notes, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Notes the
principal of and interest on the Notes 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 Notes and creditors of the Company
other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder
of any Note from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 8.7. Trustee To Effectuate Subordination. Each Holder of a Note by such
Holder's acceptance thereof authorizes and directs the Trustee on such Holder's
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
Section 8.8. No Waiver of Subordination Provisions. No right of any present or
future holder of any Senior Debt 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 Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior Debt,
do any one or more of the following: (a) change the manner, place or terms of
payment or the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (c) release any Person liable in any manner for
the collection of Senior Debt; and (d) exercise or refrain from exercising any
rights against the Company and any other Person.
Section 8.9. 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 Notes. Notwithstanding the
provisions of this Article 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 Notes,
unless and until a responsible officer of the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from any
trustee therefor or representative thereof; and, prior to the receipt of any
such written notice, the Trustee shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of, the principal of
or interest on any Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
The Trustee shall be entitled to rely conclusively on the
delivery to it of a written notice, and proof of ownership acceptable to the
Trustee, by a Person representing himself to be a holder of Senior Debt (or a
trustee therefor or representative thereof) to establish that such notice has
been given by a holder of Senior Debt (or a trustee therefor or representative
thereof). 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 Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt 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, 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 8.10. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this
Article, the Trustee and the Holders of the Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, 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 Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 8.11. Trustee Not Fiduciary for Holders of Senior Debt. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if it shall in good faith and absent
gross negligence or willful misconduct, mistakenly pay over or distribute to
Holders of Notes or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
Section 8.12. 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 with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.8 of the Base Indenture.
Section 8.13. Article Applicable 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 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 in addition to or in
place of the Trustee; provided, however, that Sections 8.9 and 8.12 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
Section 8.14. Subsidiaries. No payment, distribution of assets or other action
may be taken by any Subsidiary of the Company with respect to the Notes if the
Company would be prohibited by this Article IX from taking such action.
Section 8.15. Rescission. The provisions of this Article 8 shall continue to be
effective or be reinstated, as the case may be, if at any time any payment in
respect of any of the Senior Debt is rescinded or must otherwise be returned by
the holder thereof upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, all as though such payment had not been made.
Section 8.16. Payment. For purposes of this Article 8, "payment in full" of
Senior Debt means prior payment in full (including payment of reimbursement
obligations under letters of credit) of such Senior Debt (including all interest
accruing after the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowed as a claim in any such
proceeding) in cash or other immediately available funds and termination, cash
collateralization or replacement of contingent obligations (including all
letters of credit issued thereunder but excluding only any unasserted indemnity
obligations) and termination of all commitments thereunder.
Article 9
MISCELLANEOUS
Section 9.1. 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:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166-9323
Telephone No. (703) 265-1000
Attention: Chief Financial Officer
with a copy to:
Attention: General Counsel
if to the Trustee:
State Street Bank and Trust
Company
225 Franklin Street
Boston, MA 02110
Telephone No. (617) 662-1723
Attention: Corporate Trust Department
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 9.2. 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 9.3. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 9.4. Statements Required in Certificate or Opinion. Each Officers'
Certificate or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
Section 9.5. 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 9.6. 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 9.7. Legal Holidays. A "Legal Holiday" is any day other than a Business
Day. If any specified date (including a date for giving notice) is a Legal
Holiday, the action shall be taken on the next succeeding day that is not a
Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Notes, no Original Issue Discount or interest, if any, shall
accrue for the intervening period.
Section 9.8. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE NOTES, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 9.9. 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 9.10. 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.
Section 9.11. 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.
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.
AMERICA ONLINE, INC.
By:
Name:
Title:
Attest:
Name:
Title:
[SEAL]
STATE STREET BANK AND TRUST COMPANY
By:
Name:
Title:
Attest:
Title:
[SEAL]
A-2
A-1
EXHIBIT A
[FORM OF FACE OF GLOBAL NOTE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000
OF PRINCIPAL AMOUNT AT MATURITY OF THIS NOTE IS $448.74, THE ISSUE DATE IS
DECEMBER 6, 1999, THE YIELD TO MATURITY IS 3.00 %.
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.
AMERICA ONLINE INC.
Convertible Subordinated Note due 2019
No. R- CUSIP:
Issue Date: December 6, 1999 Aggregate Principal Amount at Maturity $
Original Issue Discount: $448.74 (for each $1,000 Principal Amount at Maturity)
Issue Price: $551.26 (for each $1,000 Principal Amount at Maturity)
AMERICA ONLINE INC., a Delaware corporation, promises to pay
to or registered assigns, the Principal Amount at Maturity of Dollars on
December 6, 2019.
This Note shall not bear interest except as specified on the
other side of this Note. Original Issue Discount will accrue as specified on the
other side of this Note. This Note is convertible as specified on the reverse
side of this Note.
Additional provisions of this Note are set forth on the
reverse side of this Note.
Dated: AMERICA ONLINE INC.
[SEAL] By:
Title:
Attest:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
[STATE STREET BANK AND TRUST
COMPANY],
as Trustee
By
Authorized Signatory
Dated:
A-4
[FORM OF REVERSE SIDE OF NOTES]
Convertible Subordinated Note Due 2019
1. Interest.
This Note shall not bear interest, except as specified in this
paragraph or in paragraph 10 hereof. If the Principal Amount at Maturity hereof
or any portion of such Principal Amount at Maturity is not paid when due
(whether upon acceleration pursuant to Section 4.1 of the Supplemental Indenture
and Section 5.2 of the Base Indenture, upon the date set for payment of the
Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment
of the Purchase Price or Fundamental Change Purchase Price pursuant to paragraph
6 hereof or upon the Stated Maturity of this Note) or if interest due hereon or
any portion of such interest is not paid when due in accordance with paragraph
10 hereof, then in each such case the overdue amount shall, to the extent
permitted by law, bear interest at the rate of 3.00 % per annum, compounded
semi-annually, which interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for. All such interest shall be payable on
demand. The accrual of such interest on overdue amounts shall be in lieu of, and
not in addition to, the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue
Price and the Principal Amount at Maturity of the Note), in the period during
which a Note remains outstanding, shall accrue at 3.00 % per annum, on a
semiannual bond equivalent basis using a 360-day year composed of twelve 30-day
months, from the Issue Date of this Note.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the
Company will make payments in respect of Redemption Price, Purchase Price,
Fundamental Change Purchase Price and at Stated Maturity to Holders who
surrender Notes to a Paying Agent to collect such payments in respect of the
Notes. The Company will pay cash amounts 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 make such cash payments by check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, State Street Bank and Trust Company, a
Massachusetts trust company (the "Trustee"), will act as Paying Agent,
Conversion Agent and Registrar. The Company may appoint and change any Paying
Agent, Conversion Agent, Registrar or co-registrar without notice, other than
notice to the Trustee except that the Company will maintain at least one Paying
Agent in the State of New York, City of New York, Borough of Manhattan (which
shall initially be an office of State Street Bank and Trust Company, N.A., an
affiliate of the Trustee). The Company or any of its Subsidiaries or any of
their Affiliates may act as Paying Agent, Conversion Agent, Registrar or
co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of
December 6, 1999 (the "Base Indenture"), between the Company and the Trustee and
the Supplemental Indenture No. 1 thereto dated as of December 6, 1999 (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 $ 2,607,663,000 aggregate Principal Amount at Maturity. The
Indenture does not limit other indebtedness of the Company, secured or
unsecured.
The defeasance provisions described in Article IV of the Base
Indenture will not apply to the Notes.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Notes. The Notes are not
redeemable prior to December 6, 2002. The Notes are redeemable as a whole, but
not in part, on or after , 2002 and prior to December 6, 2004 at the option of
the Company at the Redemption Price set forth below if the closing price for the
Common Stock on the New York Stock Exchange is equal to or greater than 150 % of
the Conversion Price then in effect for at least 20 trading days in any
consecutive 30 trading days preceding such redemption provided that the Company
provides notice of such redemption within five trading days following the last
of the 30 days' trading period. The Notes are redeemable in cash as a whole, or
from time to time in part, at any time on or after December 6, 2004 at the
option of the Company at the Redemption Prices set forth below.
The table below shows Redemption Prices of a Note per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect accrued Original Issue Discount calculated to each such
date. The Redemption Price of a Note redeemed between such dates shall include
an additional amount reflecting the additional Original Issue Discount accrued
since the next preceding date in the table.
R-7
<TABLE>
(1) (3)
(2)
Accrued
Original Issue Redemption
Notes Discount Price
Redemption Date Issue Price at 3.00 % (1) + (2)
- --------------- ----------- ------------- -----------
<S> <C> <C> <C> <C>
December 6, 2002......................... $551.26 51.51 $602.77
December 6, 2003......................... 551.26 69.73 620.99
December 6, 2004......................... 551.26 88.50 639.76
December 6, 2005......................... 551.26 107.84 659.10
December 6, 2006......................... 551.26 127.76 679.02
December 6, 2007......................... 551.26 148.28 699.54
December 6, 2008......................... 551.26 169.42 720.68
December 6, 2009......................... 551.26 191.21 742.47
December 6, 2010......................... 551.26 213.65 764.91
December 6, 2011......................... 551.26 236.77 788.03
December 6, 2012......................... 551.26 260.59 811.85
December 6, 2013......................... 551.26 285.12 836.38
December 6, 2014......................... 551.26 310.40 861.66
December 6, 2015......................... 551.26 336.45 887.71
December 6, 2016......................... 551.26 363.28 914.54
December 6, 2017......................... 551.26 390.92 942.18
December 6, 2018......................... 551.26 419.40 970.66
At Stated Maturity....................... 551.26 448.74 1,000.00
</TABLE>
If converted to a semiannual coupon note following the
occurrence of a Tax Event, this Note will be redeemable at the Restated
Principal Amount plus accrued and unpaid interest from the date of such
conversion through the Redemption Date; but in no event will this Note be
redeemable before December 6, 2002.
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder, the
Notes held by such Holder on December 6, 2004 at the Purchase Price of $ 639.76
per $1,000 Principal Amount at Maturity, upon delivery of a Purchase Notice
containing the information set forth in the Indenture, at any time from the
opening of business on the date that is 20 Business Days prior to such Purchase
Date until the close of business on such Purchase Date and upon delivery of the
Notes to the Paying Agent (or surrender of the beneficial interest therein
pursuant to Paragraph 7 of the DTC Letter of Representations) by the Holder as
set forth in the Indenture.
The Purchase Price (equal to the Issue Price plus accrued
Original Issue Discount to the Purchase Date) may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of Common Stock of
the Company, or in any combination thereof.
If prior to a Purchase Date this Note has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion to the Purchase Date.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase the
Notes held by such Holder 40 Business Days after the occurrence of a Fundamental
Change occurring on or after December 6, 1999 for a Fundamental Change Purchase
Price equal to the Issue Price plus accrued Original Issue Discount to the
Fundamental Change Purchase Date, which Fundamental Change Purchase Price shall
be paid, at the option of the Company, in cash or in Common Stock. If paid in
Common Stock, the Common Stock will be valued at 97.5% of the Average Market
Price of the Common Stock. If prior to a Fundamental Change Purchase Date this
Note has been converted to a semiannual coupon note following the occurrence of
a Tax Event, the Fundamental Change Purchase Price shall be equal to the
Restated Principal Amount plus accrued and unpaid interest from the date of
conversion to the Fundamental Change Purchase Date.
Holders have the right to withdraw any Purchase Notice or
Fundamental Change Purchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the provisions of
the Indenture.
If cash (and/or Common Stock, if applicable) sufficient to pay
the Purchase Price or Fundamental Change Purchase Price, as the case may be, of
all Notes or portions thereof to be purchased as of the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, is deposited with the
Paying Agent on the Business Day following the Purchase Date or the Fundamental
Change Purchase Date, as the case may be, Original Issue Discount ceases to
accrue on such Notes (or portions thereof) immediately after such Purchase Date
or Fundamental Change Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Fundamental Change Purchase Price, as the case may be, upon surrender
of such Note).
7. Notice of Redemption.
Notice of redemption will be mailed at least 20 Business Days
but not more than 60 days before the Redemption Date to each Holder of Notes to
be redeemed at the Holder's registered address. The Notice of Redemption will
also be published in The Wall Street Journal and posted on the Company's web
site. If money sufficient to pay the Redemption Price of all Notes (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, immediately after such Redemption Date
Original Issue Discount ceases to accrue on such Notes or portions thereof.
Notes in denominations larger than $1,000 of Principal Amount at Maturity may be
redeemed in part but only in integral multiples of $1,000 of Principal Amount at
Maturity.
8. Conversion.
Subject to the next two succeeding sentences, a Holder of a
Note may convert it into Common Stock of the Company at any time before the
close of business on December 6, 2019. If the Note is called for redemption, the
Holder may convert it at any time before the close of business on the Redemption
Date. A Note in respect of which a Holder has delivered a Purchase Notice or
Fundamental Change Purchase Notice exercising the option of such Holder to
require the Company to purchase such Note may be converted only if such notice
of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 5.8338 shares of Common Stock
per $1,000 Principal Amount at Maturity, subject to adjustment in certain events
described in the Supplemental Indenture. The Company will deliver cash or a
check in lieu of any fractional share of Common Stock.
In the event the Company exercises its option pursuant to
Section 6.1 of the Supplemental Indenture to have interest in lieu of Original
Issue Discount accrue on the Note following a Tax Event, the Holder will be
entitled on conversion to receive the same number of shares of Common Stock such
Holder would have received if the Company had not exercised such option. If the
Company exercises such option, Notes surrendered for conversion during the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business of such Interest Payment Date
(except Notes to be redeemed on a date within such period) must be accompanied
by payment of an amount equal to the interest thereon that the registered Holder
is to receive. Except where Notes surrendered for conversion must be accompanied
by payment as described above, no interest on converted Notes will be payable by
the Company on any Interest Payment Date subsequent to the date of conversion.
To convert a Note, a Holder must (1) complete and manually
sign the conversion notice below (or complete and manually sign a facsimile of
such notice) and deliver such notice to the Conversion Agent or, if applicable,
complete and deliver to DTC the appropriate instruction form for conversion, (2)
surrender the Note to the Conversion Agent by book entry delivery unless
physical certificates have been issued, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Company or the
Trustee and (4) pay any required transfer or similar tax for which the Holder is
responsible.
A Holder may convert a portion of a Note if the Principal
Amount at Maturity of such portion is $1,000 or an integral multiple of $1,000.
No payment or adjustment will be made for dividends on the Common Stock except
as provided in the Indenture. On conversion of a Note, that portion of accrued
Original Issue Discount (or interest if the Company has exercised its option
provided for in paragraph 10 hereof) attributable to the period from the Issue
Date (or, if the Company has exercised the option referred to in paragraph 10
hereof, the later of (x) the date of such exercise and (y) the date on which
interest was last paid) through the Conversion Date with respect to the
converted Note shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through the delivery of
the Common Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Note being converted pursuant to the terms hereof;
and the fair market value of such shares of Common Stock (together with any such
cash payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for Original Issue Discount (or interest, if
the Company has exercised its option provided for in paragraph 10 hereof)
accrued through the Conversion Date, and the balance, if any, of such fair
market value of such Common Stock (and any such cash payment) shall be treated
as issued in exchange for the Issue Price of the Note being converted pursuant
to the provisions hereof.
The Conversion Rate will be adjusted for dividends or
distributions on Common Stock payable in Common Stock or other Capital Stock;
distributions to all holders of Common Stock of certain rights to purchase
Common Stock for a period expiring within 60 days at less than the Sale Price at
the Time of Determination; subdivisions, combinations or certain
reclassifications of Common Stock; and distributions to such holders of assets
or debt securities of the Company or certain rights to purchase securities of
the Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Holders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase the
Conversion Rate.
If the Company is a party to a consolidation, merger or
binding share exchange or a transfer of all or substantially all of its assets,
or upon certain distributions described in the Indenture, the right to convert a
Note into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
9. Conversion Arrangement on Call for Redemption.
Any Notes called for redemption, unless surrendered for
conversion before the close of business on the Redemption Date, may be deemed to
be purchased from the Holders of such Notes at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Notes from the Holders, to convert them
into Common Stock of the Company and to make payment for such Notes to the
Trustee in trust for such Holders.
10. Tax Event
(a) At the option of the Company, from and after (i) the date
(the "Tax Event Date") of the occurrence of a Tax Event and (ii) the date the
Company exercises such option, whichever is later (the "Option Exercise Date"),
interest in lieu of future Original Issue Discount shall accrue at the rate of
3.00 % per annum on a principal amount per Note (the "Restated Principal
Amount") equal to the Issue Price plus Original Issue Discount accrued through
the Option Exercise Date and shall be payable semiannually on June 6 and
December 6 of each year (each an "Interest Payment Date") to holders of record
at the close of business on May 22 or November 21 (each a "Regular Record Date")
immediately preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the Option Exercise Date.
(b) Interest on any Note that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
person in whose name that Note 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. Each installment of interest on any Note shall be
paid in same-day funds by transfer to an account maintained by the payee located
inside the United States.
(c) Except as otherwise specified with respect to the Notes,
any Defaulted Interest on any Note shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 10.2(b) of the Supplemental Indenture.
11. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, 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 transfer
or exchange any Notes selected for redemption (except, in the case of a Note to
be redeemed in part, the portion of the Note not to be redeemed) or any Notes in
respect of which a Purchase Notice or Fundamental Change Purchase Notice has
been given and not withdrawn (except, in the case of a Note to be purchased in
part, the portion of the Note not to be purchased) or any Notes for a period of
15 days before a selection of Notes to be redeemed.
12. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner
of this Note for all purposes.
13. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company
upon written request any money or securities held by them for the payment of any
amount with respect to the Notes that remains unclaimed for two years, subject
to applicable unclaimed property law. After return to the Company, Holders
entitled to the money or securities must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person.
14. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Notes at the time outstanding and (ii) certain Defaults may be waived with the
written consent of the Holders of a majority in aggregate Principal Amount at
Maturity of the Notes at the time outstanding. Subject to certain exceptions set
forth in the Indenture, without the consent of any Holder of the Notes, the
Company and the Trustee may amend the Indenture or the Notes to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article VII of
the Base Indenture or Section 7.14 of the Supplemental Indenture, to provide for
uncertificated Notes in addition to or in place of certificated Notes or to make
any change that does not adversely affect the rights of any Holder of the Notes,
or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
15. Defaults and Remedies.
Under the Indenture, Events of Default include (i) if the
Notes have been converted to semiannual coupon notes following a Tax Event,
default in the payment of interest which default continues for a period of 30
days; (ii) default in payment of the Principal Amount at Maturity (or, if the
Notes have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount), Redemption Price, Purchase Price or Fundamental
Change Purchase Price, as the case may be, in respect of the Notes when the same
becomes due and payable; (iii) failure by the Company to comply with other
agreements in the Indenture or the Notes, subject to notice and lapse of time;
and (iv) certain events of bankruptcy or insolvency. If an Event of Default
occurs and is continuing, the Trustee, or the Holders of at least 25% in
aggregate Principal Amount at Maturity of the Notes at the time outstanding, may
declare all the Notes to be due and payable immediately at the Issue Price plus
accrued Original Issue Discount or, if the Company has exercised its option to
convert the Notes pursuant to Section 6.1 of this Supplemental Indenture
following a Tax Event, the Restated Principal Amount plus accrued and unpaid
interest. Certain events of bankruptcy or insolvency are Events of Default which
will result in the Notes becoming due and payable immediately upon the
occurrence of such Events of Default.
Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate Principal
Amount at Maturity of the Notes at the time outstanding may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
the Notes notice of any continuing Default (except a Default in payment of
amounts specified in clause (i) or (ii) above) if it determines that withholding
notice is in their interests.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.
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. By accepting a Note, each Holder of the
Notes waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Notes.
18. Authentication.
This Note shall not be valid until an authorized officer of
the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Note. The statements and recitals in this Note, other than
the Trustee's certificate of authentication, are statements of the Company, and
not the Trustee, and the Trustee is not responsible for their correctness. The
Trustee makes no representation as to the validity or sufficiency of the
Indenture or this Note.
19. Reductions in Amount.
While this Note is in global form, reductions in the Principal
Amount at Maturity outstanding resulting from any redemption, purchase or
conversion of a portion hereof shall be reflected in accordance with the
provisions of the DTC Letter of Representations or other procedures in effect
from time to time at the depositary for the Notes.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder of
the Notes or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
21. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS NOTE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
----------------------
The Company will furnish to any Holder of the Notes upon
written request and without charge a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
America Online, Inc.
Attention: Investor Relations
22000 AOL Way
Dulles, VA 20166
[email protected]
A-8
<TABLE>
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 at Maturity to be converted (which must be
(Insert assignee's Soc. Sec. or tax ID no.) $1,000 or an 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.) --------------------------------
: :
--------------------------------
</TABLE>
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 OF CONTENTS
(continued)
-iv-
<TABLE>
TABLE OF CONTENTS
Page
-i-
ARTICLE 1
RELATION TO BASE INDENTURE; DEFINITIONS
<S> <C> <C>
Section 1.1. Relation to Base Indenture........................................................1
Section 1.2. Certain Definitions...............................................................1
Section 1.3. Other Definitions.................................................................4
ARTICLE 2
THE NOTES
Section 2.1. Title of the Securities...........................................................6
Section 2.2. Limitation on Aggregate Principal Amount at Maturity of the Notes.................6
Section 2.3. Form, Dating and Denomination of the Notes........................................6
Section 2.4. Registrar, Paying Agent and Conversion Agent......................................6
Section 2.5. Paying Agent to Hold Money and Notes in Trust.....................................7
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.1. Right to Redeem; Notices to Trustee...............................................7
Section 3.2. Selection of Notes to Be Redeemed.................................................7
Section 3.3. Notice of Redemption..............................................................8
Section 3.4. Effect of Notice of Redemption....................................................8
Section 3.5. Deposit of Redemption Price.......................................................9
Section 3.6. Notes Redeemed in Part............................................................9
Section 3.7. Purchase of Notes at Option of the Holder.........................................9
Section 3.8. Purchase of Notes at Option of the Holder upon Fundamental Change................15
Section 3.9. Effect of Purchase Notice or Fundamental Change Purchase Notice..................17
Section 3.10. Deposit of Purchase Price or Fundamental Change Purchase Price...................18
Section 3.11. Covenant to Comply With Securities Laws Upon Purchase of Notes...................19
Section 3.12. Repayment to the Company.........................................................19
Section 3.13. No Defeasance....................................................................19
Section 3.14. Payment Terms; Place of Payment..................................................19
Section 3.15. Conversion Arrangement on Call for Redemption....................................19
ARTICLE 4
DEFAULTS
Section 4.1. Events of Default................................................................20
ARTICLE 5
MODIFICATION
Section 5.1. Without Consent of Holders.......................................................21
Section 5.2. With Consent of Holders..........................................................22
Section 5.3. Revocation and Effect of Consents, Waivers and Actions...........................22
Section 5.4. General Requirements.............................................................23
ARTICLE 6
SPECIAL TAX EVENT CONVERSION
Section 6.1. Optional Conversion to Semiannual Coupon Note Upon Tax Event.....................23
Section 6.2. Payment of Interest; Interest Rights Preserved...................................24
ARTICLE 7
CONVERSION
Section 7.1. Conversion Privilege.............................................................25
Section 7.2. Conversion Procedure.............................................................25
Section 7.3. Fractional Shares................................................................26
Section 7.4. Taxes on Conversion..............................................................26
Section 7.5. Company to Provide Stock.........................................................27
Section 7.6. Adjustment for Change in Capital Stock...........................................27
Section 7.7. Adjustment for Rights Issue......................................................28
Section 7.8. Adjustment for Other Distributions...............................................30
Section 7.9. When Adjustment May Be Deferred..................................................31
Section 7.10. When No Adjustment Required......................................................31
Section 7.11. Notice of Adjustment.............................................................32
Section 7.12. Voluntary Increase...............................................................32
Section 7.13. Notice of Certain Transactions...................................................32
Section 7.14. Reorganization of Company; Special Distributions.................................33
Section 7.15. Company Determination Final......................................................33
Section 7.16. Trustee's Adjustment Disclaimer..................................................33
Section 7.17. Simultaneous Adjustments.........................................................34
Section 7.18. Successive Adjustments...........................................................34
Section 7.19. Rights Issued in Respect of Common Stock Issued Upon Conversion..................34
ARTICLE 8
SUBORDINATION
Section 8.1. Notes Subordinate to Senior Debt.................................................34
Section 8.2. Payment Over of Proceeds Upon Dissolution, Etc...................................34
Section 8.3. No Payment When Senior Debt in Default...........................................36
Section 8.4. Payment Permitted If No Default..................................................36
Section 8.5. Subrogation to Rights of Holders of Senior Debt..................................37
Section 8.6. Provisions Solely To Define Relative Rights......................................37
Section 8.7. Trustee To Effectuate Subordination..............................................37
Section 8.8. No Waiver of Subordination Provisions............................................37
Section 8.9. Notice to Trustee................................................................38
Section 8.10. Reliance on Judicial Order or Certificate of Liquidating Agent...................38
Section 8.11. Trustee Not Fiduciary for Holders of Senior Debt.................................39
Section 8.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights...........................................................................39
Section 8.13. Article Applicable to Paying Agents..............................................39
Section 8.14. Subsidiaries.....................................................................39
Section 8.15. Rescission.......................................................................39
Section 8.16. Payment..........................................................................39
ARTICLE 9
MISCELLANEOUS
Section 9.1. Notices..........................................................................40
Section 9.2. Communication by Holders with Other Holders......................................41
Section 9.3. Certificate and Opinion as to Conditions Precedent...............................41
Section 9.4. Statements Required in Certificate or Opinion....................................41
Section 9.5. Separability Clause..............................................................41
Section 9.6. Rules by Trustee, Paying Agent, Conversion Agent and Registrar...................41
Section 9.7. Legal Holidays...................................................................42
Section 9.8. GOVERNING LAW....................................................................42
Section 9.9. No Recourse Against Others.......................................................42
Section 9.10. Successors.......................................................................42
Section 9.11. Multiple Originals...............................................................42
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
---------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
AMERICA ONLINE, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 54-1322110
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
22000 AOL Way, Dulles, Virginia 20166-9323
(Address of principal executive offices) (Zip Code)
Convertible Subordinated Notes Due 2019
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its parent, State
Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange Commission as Exhibit 1
to Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of
association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to commence
business was necessary or issued is on file with the Securities and Exchange
Commission as Exhibit 2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration Statement of
Morse Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and Exchange Commission as
Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
5. A copy of each indenture referred to in Item 4. if the obligor
is in default.
Not applicable.
6. The consents of United States institutional trustees required
by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the November 17, 1999.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Jacqueline Bonhomme
NAME: Jacqueline Bonhomme
TITLE: Assistant Vice President
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by America
Online, Inc. of its Convertible Subordinated Notes Due 2019, we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Jacqueline Bonhomme
NAME: Jacqueline Bonhomme
TITLE: Assistant Vice President
Dated: November 17, 1999
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1999, published
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ...........1,755,237
Interest-bearing balances .................................. 14,209,161
Securities........................................................... 13,027,148
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ..........................7,840,413
Loans and lease financing receivables:
Loans and leases, net of unearned income .....................8,134,756
Allowance for loan and lease losses .............................88,351
Allocated transfer risk reserve.......................................0
Loans and leases, net of unearned income and allowances ......8,046,405
Assets held in trading accounts .......................................1,753,511
Premises and fixed assets ............................... ...............529,247
Other real estate owned .......................................................0
Investments in unconsolidated subsidiaries ..................................603
Customers' liability to this bank on acceptances outstanding .............76,078
Intangible assets .......................................................223,035
Other assets...........................................................1,481,250
Total assets .........................................................48,942,088
==================
LIABILITIES
Deposits:
In domestic offices .........................................13,006,374
Noninterest-bearing .................................9,462,505
Interest-bearing ....................................3,543,869
In foreign offices and Edge subsidiary ......................19,913,151
Noninterest-bearing ...................................444,189
Interest-bearing ...................................19,468,962
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .........................10,510,055
Demand notes issued to the U.S. Treasury.......................................0
Trading liabilities....................................................1,151,604
Other borrowed money ....................................................198,253
Subordinated notes and debentures .............................................0
Bank's liability on acceptances executed and outstanding .................76,078
Other liabilities .....................................................1,291,791
Total liabilities ....................................................46,147,306
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................0
Common stock .............................................................29,931
Surplus .................................................................489,739
Undivided profits and capital reserves
Net unrealized holding gains (losses) ..............................2,313,006
Net unrealized holding gains (losses)
on available-for-sale securities.................................(25,610)
Cumulative foreign currency translation adjustments ...................(12,284)
Total equity capital ..................................................2,794,782
Total liabilities and equity capital .................................48,942,088
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
