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As filed with the Securities and Exchange Commission on March 14, 2000 Registration No. 333-30770
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
U.S. WIRELESS CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 2303 Camino Ramon, Suite 200 13-3704059
(State or other jurisdiction of Incorporation San Ramon, California 94583 (I.R.S. Employer Identification Number)
or organization) (925) 327-6200
</TABLE>
(Address and telephone number of Registrant's principal executive offices)
DR. OLIVER HILSENRATH
Chief Executive Officer
2303 Camino Ramon, Suite 200
San Ramon, California 94583
(925) 327-6200
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
DAVID KLARMAN, ESQ. GREGORY EZRING, ESQ.
U.S. Wireless Corporation Latham & Watkins
2303 Camino Ramon, Suite 200 885 Third Avenue
San Ramon, California 94583 New York, New York 10022
(925) 327-6200 (212) 906-1200
---------------
Approximate date of commencement of proposed
sale to the public:
From time to time after the effective date of this Registration
Statement, as determined by the Registrant.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.| | -------------
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
---------------
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
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Securities and Exchange Commission Fee.......................................................... $ 118,000
*Rating Agency Fees............................................................................... 100,000
*Legal Fees and Expenses.......................................................................... 150,000
*Accounting Fees and Expenses..................................................................... 75,000
*Printing Expenses................................................................................ 30,000
*Blue Sky Fees.................................................................................... 5,000
*Trustee/Issuing & Paying Agent Fees and Expenses................................................. 10,000
*Transfer Agent Fees & Expenses................................................................... 5,000
*Miscellaneous.................................................................................... 9,000
*Total......................................................................................... $502,000
========
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* Estimated.
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL"), Article
Fifth of the Amended and Restated Certificate of Incorporation and Article
Twelfth of the Bylaws provide for indemnification of U.S. Wireless Corporation's
directors and officers in a variety of circumstances, which may include
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
Article Twelfth provides that U.S. Wireless Corporation shall indemnify, to the
full extent permitted by the laws of Delaware, each person made or threatened to
be made a party to any action or proceeding and may advance or reimburse
expenses incurred in defending any proceeding for which such right to
indemnification is applicable provided that the indemnitee (i) provides U.S.
Wireless Corporation with an undertaking to repay all amounts advanced if it is
ultimately determined that such person is not entitled to indemnification or, if
indemnification is granted, to the extent the expenses advanced or reimbursed
exceed the amount to which such person is entitled and (ii) cooperates in good
faith with any request by U.S. Wireless Corporation that common counsel be
utilized.
The general effect of the provisions in U.S. Wireless Corporation's Amended
and Restated Certificate of Incorporation, Bylaws and the DGCL is to provide
that U.S. Wireless Corporation shall indemnify its directors and officers
against all liabilities and expenses actually and reasonably incurred in
connection with the defense or settlement of any judicial or administrative
proceedings in which they have become involved by reason of their status as
corporate directors or officers, if they acted in good faith and in the
reasonable belief that their conduct was neither unlawful (in the case of
criminal proceedings) nor inconsistent with the best interests of U.S. Wireless
Corporation. With respect to legal proceedings by or in the right of U.S.
Wireless Corporation in which a director or officer is adjudged liable for
improper performance of his duty to U.S. Wireless Corporation or another
enterprise for which such person served in a similar capacity at the request of
U.S. Wireless Corporation, indemnification is limited by such provisions to that
amount which is permitted by the court.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that the information required to be
included in a post-effective amendment by paragraphs (1)(i) and(1)(ii) above may
be contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act and (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the eligibility
of the trustee to act under Subsection (a) of Section 310 of the TIA in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the TIA.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned
thereunto duly authorized in the City of San Ramon, State of California, on the
13th day of March, 2000.
U.S. WIRELESS CORPORATION
By: /s/ Oliver Hilsenrath
Name: Dr. Oliver Hilsenrath
Title: Chief Executive Officer, President and Director
Pursuant to the requirements of the Securities Act, this
Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
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Signature Title Date
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/s/ Dr. Oliver Hilsenrath Chief Executive Officer, President and March 13, 2000
Dr. Oliver Hilsenrath Director (Principal Executive
Officer, Principal Financial Officer
and Principal Accounting Officer)
* Director March 13, 2000
- -----------------------------------------
Louis Golm
* Director March 13, 2000
- ----------------------------------------
Dennis Francis
* Director March 13, 2000
- -----------------------------------------
Barry West
* Director March 13, 2000
- -----------------------------------------
Irwin Gross
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* By Dr. Oliver Hilsenrath, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
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1.1 Form of Purchase Agreement
3.2.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference from the
Company's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1999 (the "1999 Form 10-KSB"))
3.2.2 Certificate of Amendment of the Certificate of Incorporation of the Company (incorporated by reference from
the 1999 Form 10-KSB)
3.2.3 Certificate of Amendment of the Certificate of Incorporation of the Company (incorporated by reference from
the 1999 Form 10-KSB)
3.4 By-Laws of the Company (incorporated by reference from the Company's Registration Statement on Form SB-2
dated March 28, 1994 under File No. 33-68306-NY (the "1994 Form SB-2")
3.4.1 Amendment to the By-Laws dated November 25, 1997 (incorporated by reference from the Company's Annual Report
on Form 10-KSB for the fiscal year ended March 31, 1998 (the "1998 Form 10-KSB"))
3.5 Form of Common Stock Certificate (incorporated by reference from the 1994 Form SB-2).
3.6 Form of Series A Preferred Stock Certificate (incorporated by reference from the 1998 Form 10-KSB)
3.6.1 Form of Series B Preferred Stock Certificate (incorporated by reference from the 1999 Form 10-KSB)
4.1 Form of Senior Indenture
4.2 Form of Subordinated Indenture
**4.3 Form of Specimen of Senior Debt Security
**4.4 Form of Specimen of Subordinated Debt Security
4.5 Form of Warrant Agreement
4.8 Form of Warrant (included in Exhibit 4.5)
**4.9 Form of Deposit Agreement
5.1 Opinion of Latham & Watkins as to validity of Offered Securities
*23.1 Consent of Haskell & White LLP
23.2 Consent of Latham & Watkins (included in its opinion filed as Exhibit 5.1)
*24.1 Power of Attorney of Registrant's Director and Officers
**25.1 Statement of Eligibility of trustee on Form T-1 with respect to indenture
</TABLE>
- --------------
* Previously filed.
** To be incorporated by reference in connection with the offering of any
Offered Securities.
EXHIBIT 1.1
================================================================================
U.S. WIRELESS CORPORATION
(a Delaware corporation)
PURCHASE AGREEMENT FOR
COMMON STOCK, WARRANTS TO PURCHASE COMMON STOCK,
PREFERRED STOCK, WARRANTS TO PURCHASE PREFERRED STOCK,
DEPOSITARY SHARES,
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES,
UNITS
Dated:
================================================================================
<PAGE>
Table of Contents
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Page
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SECTION 1. Representations and Warranties..........................................................4
(a) Representations and Warranties by the Company...................................................4
(1) Compliance with Registration Requirements...............................................4
(2) Incorporated Documents..................................................................5
(3) Independent Accountants.................................................................5
(4) Financial Statements....................................................................5
(5) No Material Adverse Change in Business..................................................6
(6) Good Standing of the Company............................................................6
(7) Good Standing of Subsidiaries...........................................................6
(8) Capitalization..........................................................................7
(9) Authorization of this Purchase Agreement and Terms Agreement............................7
(10) Authorization of Common Stock...........................................................7
(11) Authorization of Preferred Stock and/or Depositary Shares...............................7
(12) Authorization of Deposit Agreement......................................................8
(13) Authorization of Senior Debt Securities and/or Subordinated Debt Securities.............8
(14) Authorization of the Indentures.........................................................8
(15) Authorization of Warrants...............................................................9
(16) Authorization of Warrant Agreement......................................................9
(17) Authorization of Underlying Securities..................................................9
(18) Descriptions of the Underwritten Securities, Underlying Securities, Indentures, Deposit
Agreement and Warrant Agreement........................................................10
(19) Absence of Defaults and Conflicts......................................................10
(20) Absence of Proceedings.................................................................11
(21) Accuracy of Exhibits...................................................................12
(22) Absence of Further Requirements........................................................12
(23) Possession of Intellectual Property....................................................12
(24) Title to Property......................................................................12
(25) Investment Company Act.................................................................13
(26) Environmental Laws.....................................................................13
(b) Officers' Certificates.........................................................................13
SECTION 2. Sale and Delivery to Underwriters; Closing.............................................13
(a) Underwritten Securities........................................................................13
(b) Option Underwritten Securities.................................................................13
(c) Payment........................................................................................14
(d) Denominations; Registration....................................................................15
<PAGE>
SECTION 3. Covenants of the Company...............................................................15
(a) Compliance with Securities Regulations and Commission Requests.................................15
(b) Filing of Amendments...........................................................................15
(c) Delivery of Registration Statements............................................................16
(d) Delivery of Prospectuses.......................................................................16
(e) Continued Compliance with Securities Laws......................................................16
(f) Blue Sky Qualifications........................................................................17
(g) Earnings Statement.............................................................................17
(h) Reservation of Securities......................................................................17
(i) Use of Proceeds................................................................................17
(j) Listing........................................................................................17
(k) Restriction on Sale of Securities..............................................................17
(l) Reporting Requirements.........................................................................18
SECTION 4. Payment of Expenses....................................................................18
(a) Expenses.......................................................................................18
(b) Termination of Agreement.......................................................................18
SECTION 5. Conditions of Underwriters' Obligations................................................19
(a) Effectiveness of Registration Statement........................................................19
(b) Opinion of Counsel for Company.................................................................19
(c) Opinion of Counsel for Underwriters............................................................19
(d) Officers' Certificate..........................................................................19
(e) Accountant's Comfort Letter....................................................................20
(f) Bring-down Comfort Letter......................................................................20
(g) Ratings........................................................................................20
(h) Approval of Listing............................................................................20
(i) No Objection...................................................................................21
(j) Lock-up Agreements.............................................................................21
(k) Over-Allotment Option..........................................................................21
(l) Additional Documents...........................................................................22
(m) Termination of Terms Agreement.................................................................22
SECTION 6. Indemnification........................................................................22
(a) Indemnification of Underwriters................................................................22
(b) Indemnification of Company, Directors and Officers.............................................23
(c) Actions against Parties; Notification..........................................................23
(d) Settlement without Consent if Failure to Reimburse.............................................24
SECTION 7. Contribution...........................................................................24
SECTION 8. Representations, Warranties, Agreements and Indemnities to Survive ..............Delivery 26
SECTION 9. Termination............................................................................26
(a) Terms Agreement................................................................................26
(b) Liabilities....................................................................................27
<PAGE>
SECTION 10. Default by One or More of the Underwriters.............................................27
SECTION 11. Notices................................................................................27
SECTION 12. Parties................................................................................28
SECTION 13. GOVERNING LAW AND TIME.................................................................28
SECTION 14. Effect of Headings.....................................................................28
</TABLE>
<PAGE>
U.S. WIRELESS CORPORATION
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
PURCHASE AGREEMENT
_______, 2000
[Name of Underwriter]
[Address of Underwriter]
Ladies and Gentlemen:
U.S. Wireless Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to $450,000,000 aggregate public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) warrants to purchase shares of Common Stock (the "Common Stock Warrants"),
(iii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), (iv) warrants to purchase shares of Preferred Stock (the "Preferred
Stock Warrants"), (v) senior or subordinated debt securities (the "Debt
Securities"), (vi) warrants to purchase Debt Securities (the "Debt Security
Warrants") or (vii) units consisting of two or more of the foregoing securities
(the "Units"), or any combination thereof, from time to time, in or pursuant to
one or more offerings on terms to be determined at the time of sale and set
forth in a terms agreement in the form of Exhibit A (the "Terms Agreement").
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable charter amendment, board resolution or certificate of
designations (each, the "Certificate of Designations") or the applicable Terms
Agreement relating to such series of Preferred Stock. A series of Preferred
Stock may be represented by depositary shares (the "Depositary Shares") that are
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
a deposit agreement (each, a "Deposit Agreement") among the Company, the
depositary identified therein (the "Depositary") and the registered holders of
the Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture (the "Senior
Indenture"), between the Company and the trustee identified therein (the "Senior
Trustee"), or as subordinated indebtedness (the "Subordinated Debt Securities")
under an indenture (the "Subordinated Indenture," and collectively with the
Senior Indenture, the "Indentures," and each, an "Indenture"), between the
Company and the trustee identified therein (the "Subordinated Trustee," and
collectively with the Senior Trustee, the "Trustees," and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
if any, stated maturity date, redemption and/or repayment provisions, if any,
sinking fund requirements, if any, conversion provisions (and terms of the
related Underlying Securities) and any other variable terms established by or
pursuant to the applicable Indenture.
<PAGE>
Each issue of Common Stock Warrants, Preferred Stock Warrants and Debt
Security Warrants (collectively, the "Warrants") will be issued pursuant to a
separate warrant agreement (each, a "Warrant Agreement") between the Company and
the warrant agent identified therein (each, a "Warrant Agent"). The Warrants may
vary, as applicable, as to, among other terms, title, type, specific number,
exercise dates or periods, exercise price(s), expiration date(s), terms of the
related Underlying Securities and any other variable terms set forth in the
applicable Terms Agreement related thereto.
As used herein, "Securities" shall mean the Common Stock, Common Stock
Warrants, Preferred Stock, Preferred Stock Warrants, Depositary Shares, Senior
Debt Securities, Subordinated Debt Securities or Units, or any combination
thereof, initially issuable by the Company and "Underlying Securities" shall
mean the Common Stock, Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities issuable upon exercise of the
Warrants, as applicable, or upon conversion of the Preferred Stock, Depositary
Shares, Senior Debt Securities or Subordinated Debt Securities or Units, as
applicable.
Whenever the Company determines to make an offering of Securities, the
Company will enter into a Terms Agreement providing for the sale of such
Securities to, and the purchase and offering thereof by, such underwriter or
syndicate underwriters, if any, selected by the Company (the "Underwriters,"
which term shall include any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Securities shall
specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 10 hereof) and the name of any Underwriter acting as
manager or co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Initial Underwritten Securities and any other material variable
terms of the Initial Underwritten Securities, as well as the material variable
terms of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number or aggregate principal amount, as the
case may be, of Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement may take the form of an exchange of
any standard form of written telecommunication between the Company and the
managing underwriter, acting for itself and, if applicable, as representative of
any other Underwriters. Each offering of Underwritten Securities will be
governed by this Purchase Agreement, as supplemented by the applicable Terms
Agreement and this Agreement and such Terms Agreement shall inure to the benefit
of and be binding upon the Company and each Underwriter participating in the
offering of such Underwritten Securities except as set forth in Section 12
hereof.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_______), including
a prospectus, for the registration of the Securities and the Underlying
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission and each Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Purchase Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this Purchase
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
<PAGE>
All references in this Purchase Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Purchase Agreement to amendments or supplements to
the Registration Statement, Prospectus or preliminary prospectus shall be deemed
to mean and include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1.........Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company represents and
warrants to [Managing Underwriter], as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined in Section 2) and, if applicable, as of each
Date of Delivery (as defined in Section 2) (in each case, a "Representation
Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or such Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with. In addition, each Indenture has been duly
qualified under the 1939 Act.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any,
neither the Prospectus nor any amendments and supplements thereto
included or will include an untrue statement of a material fact or
omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
[Managing Underwriter] expressly for use in the Registration Statement
or the Prospectus.
<PAGE>
Each preliminary prospectus and 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 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with any offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, did not and will not include an 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.
(3) Independent Accountants. The accountants who certified the financial
statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present
fairly the financial position of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
<PAGE>
(5) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the financial condition, earnings or
business affairs, or any development involving a prospective material
adverse change in the financial condition, earnings or business
affairs, of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, this Purchase Agreement
and the applicable Terms Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each, a "Subsidiary" and,
collectively, the "Subsidiaries"), if any, has been duly organized and
is validly existing as a corporation, limited partnership or other
entity in good standing under the laws of the jurisdiction of its
incorporation, has the requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock or partnership interests of
each Subsidiary has been duly authorized and is validly issued, fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock or partnership interest of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
<PAGE>
(8) Capitalization. If the Prospectus contains a "Capitalization" section,
the authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under such
section (except for (A) subsequent issuances thereof, if any,
contemplated under this Purchase Agreement, (B) pursuant to
reservations, agreements or employee benefit plans referred to or
incorporated by reference in the Prospectus, and (C) up to _______
shares of capital stock issuable under the Company's [Stock Option
Plan] and up to _______ shares of capital stock issuable under the
Company's [Director Compensation Plan] or (D) pursuant to the exercise
of convertible securities or options referred to or incorporated by
reference in the Prospectus). Such shares of capital stock have been
duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such shares of capital stock was issued
in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Purchase Agreement and Terms Agreement. This
Purchase Agreement has been, and the applicable Terms Agreement as of
the date thereof will have been, duly authorized, executed and
delivered by the Company.
(10) Authorization of Common Stock. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Common Stock,
such Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and delivered by the Company
pursuant to this Purchase Agreement and such Terms Agreement against
payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Underwritten
Securities is or will be subject to personal liability by reason of
being such a holder.
(11) Authorization of Preferred Stock and/or Depositary Shares. If the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement include Preferred Stock and/or Depositary Shares, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
The applicable Preferred Stock, when issued and delivered by the
Company pursuant to this Purchase Agreement and such Terms Agreement
against payment of the consideration therefor, or for the related
Depositary Shares, as the case may be, specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. In addition, upon deposit by the Company
of any Preferred Stock represented by Depositary Shares with the
applicable Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares, in each
case pursuant to the applicable Deposit Agreement, such Depositary
Shares will represent legal and valid interests in such Preferred
Stock. No holder of such Preferred Stock or Depositary Receipts
evidencing Depositary Shares is or will be subject to personal
liability by reason of being such a holder. The applicable Certificate
of Designations will be in full force and effect prior to the Closing
Time.
<PAGE>
(12) Authorization of Deposit Agreement. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include
Depositary Shares or if Debt Securities are convertible into Depositary
Shares represented by Preferred Stock, the applicable Deposit Agreement
has been, or prior to the issuance of such Depositary Shares will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law). Each registered
holder of a Depositary Receipt under the applicable Deposit Agreement
will be entitled to the proportional rights, preferences and
limitations of the Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipt and to such other rights as are
granted to such registered holder in such Deposit Agreement.
(13) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been,
or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this
Purchase Agreement and such Terms Agreement. Such Underwritten
Securities, when issued and authenticated in the manner provided for in
the applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to any
Debt Securities payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States. Such Underwritten Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the benefits of,
the applicable Indenture.
(14) Authorization of the Indentures. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock
is, or Depositary Shares represented by Preferred Stock are or Units
are, convertible into Debt Securities, each applicable Indenture and
any supplement thereto has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and upon execution and delivery by the Trustee thereunder,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
<PAGE>
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(15) Authorization of Warrants. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Warrants, such
Underwritten Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Purchase Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the
manner provided for the applicable Warrant Agreement and delivered
against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement
and enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(16) Authorization of Warrant Agreement. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement and any
supplement thereto include Warrants, each applicable Warrant Agreement
and any settlement thereto has been, or prior to the issuance of such
Underwritten Securities will have been, duly authorized, executed and
delivered by the Company and, upon such authorization, execution and
delivery, and upon execution and delivery by the Warrant Agent
thereunder, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(17) Authorization of Underlying Securities. If the Underlying Securities
related to the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock, Preferred Stock or
Depositary Shares, such Underlying Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized and
reserved for issuance by the Company upon exercise of the Common Stock
Warrants or Preferred Stock Warrants, as applicable, or upon conversion
of the related Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities or Units, as applicable. If
the Underlying Securities include Common Stock or Preferred Stock, such
Underlying Securities, when issued upon such exercise or conversion, as
<PAGE>
applicable, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. If the Underlying Securities include
Depositary Shares, such Underlying Securities, upon deposit by the
Company of the Preferred Stock represented thereby with the applicable
Depositary and the execution and delivery by such Depositary of the
Depositary Receipts evidencing such Depositary Shares, in each case
pursuant to the applicable Deposit Agreement, will represent legal and
valid interests in such Preferred Stock. No holder of such Common
Stock, Preferred Stock or Depositary Receipts evidencing Depository
Shares is or will be subject to personal liability by reason of being
such a holder. If the Underlying Securities related to the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities,
such Underlying Securities have been, or as of the date of such Terms
Agreement will have been, duly authorized for issuance by the Company
upon the exercise of the Debt Security Warrants or upon conversion of
the related Preferred Stock or Depositary Shares, as applicable. Such
Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance
with the terms of the Debt Security Warrants or the related Preferred
Stock or Depositary Shares, as applicable, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements
that a claim with respect to any Debt Securities payable in a foreign
or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
by governmental authority to limit, delay or prohibit the making of
payments outside the United States.
(18) Descriptions of the Underwritten Securities, Underlying Securities,
Indentures, Deposit Agreement and Warrant Agreement. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement and
each applicable Indenture, Deposit Agreement and Warrant Agreement, as
of each Representation Date, and any Underlying Securities, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(19) Absence of Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
<PAGE>
or by which it or any of them may be bound, or to which any of the
assets, properties or operations of the Company or any of its
Subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Purchase
Agreement, the applicable Terms Agreement and each applicable
Indenture, Warrant Agreement and Deposit Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds" as well as the issuance of any Underlying Securities)
and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, (i) conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or (ii)
result in the creation or imposition of any lien, charge or encumbrance
upon any assets, properties or operations of the Company or any of its
Subsidiaries pursuant to, any Agreements and Instruments, or (iii)
result in any violation of the provisions of the charter or by-laws of
the Company or any of its Subsidiaries or (iv) result in any violation
of any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(20) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the
Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Prospectus, this Purchase
Agreement, the applicable Terms Agreement or any applicable Indenture,
Warrant Agreement or Deposit Agreement or the performance by the
Company of its obligations hereunder and thereunder. The aggregate of
all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
<PAGE>
(21) Accuracy of Exhibits. There are no contracts or documents which are
required by the 1933 Act or the 1933 Act Regulations to be described in
the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.
(22) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the due authorization, execution
and delivery by the Company of this Purchase Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Purchase
Agreement, such Terms Agreement or any applicable Indenture, Warrant
Agreement or Deposit Agreement, except such as have been already made,
obtained or rendered, as applicable.
(23) Possession of Intellectual Property. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know how (including,
without limitation, trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any written notice or is
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy would, singly or in the aggregate, result in a Material
Adverse Effect.
(24) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A)
as otherwise stated in the Registration Statement and the Prospectus or
(B) those which do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries. All of the leases and subleases material to the business
of the Company and its subsidiaries considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor any of its subsidiaries has received any written notice
of any claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary of the continued possession of
the leased or subleased premises under any such lease or sublease where
such claim or claims, individually or in the aggregate, would result in
a Material Adverse Effect.
<PAGE>
(25) Investment Company Act. None of the Company or any of its subsidiaries
is, and upon the issuance and sale of the Underwritten Securities as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations of the Commission thereunder.
(26) Environmental Laws. Except as otherwise stated in the Registration
Statement and the Prospectus and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened,
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of the Company
or any of its subsidiaries and delivered to any Underwriter or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
and dated a Representation Date shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on such
Representation Date.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters named in such Terms
<PAGE>
Agreement, severally and not jointly, to purchase up to the number or aggregate
principal amount, as the case may be, of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security, less an amount equal to any dividends or
distributions declared by the Company and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
[Managing Underwriter] to the Company setting forth the number or aggregate
principal amount, as the case may be, of Option Underwritten Securities as to
which the several Underwriters are then exercising the option, the names in
which the Option Underwritten Securities are to be registered, the denominations
in which the Option Underwritten Securities are to be issued, and the time, date
and place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall be
determined by [Managing Underwriter], but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, unless otherwise agreed upon by [Managing Underwriter] and the
Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total number or aggregate principal amount,
as the case may be, of Option Underwritten Securities then being purchased which
the number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities,
subject to such adjustments as [Managing Underwriter] in its discretion shall
make to eliminate any sales or purchases of a fractional number or aggregate
principal amount, as the case may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the Initial
Underwritten Securities shall be made at the offices of Latham & Watkins, 885
Third Avenue, New York, New York 10022, or at such other place as shall be
agreed upon by [Managing Underwriter] and the Company, at 10:00 A.M. (New York
City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York
City time) on any given day) full business day after the date of the applicable
Terms Agreement (unless postponed in accordance with the provisions of Section
10 hereof), or such other time not later than ten business days after such date
as shall be agreed upon by [Managing Underwriter] and the Company (such time and
date of payment and delivery being herein called "Closing Time"). In addition,
in the event that the Underwriters have exercised their option, if any, to
purchase any or all of the Option Underwritten Securities, payment of the
purchase price for, and delivery of such Option Underwritten Securities, shall
be made at the above-mentioned offices of Latham & Watkins, 885 Third Avenue,
New York, New York 10022, or at such other place as shall be agreed upon by
[Managing Underwriter] and the Company, on the relevant Date of Delivery as
specified in the notice from [Managing Underwriter] to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
[Managing Underwriter] for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
<PAGE>
Underwriter has authorized [Managing Underwriter], for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. [Managing
Underwriter], individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Securities, certificates for
the Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as [Managing Underwriter] may request in writing at least one full
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be. The Underwritten Securities, certificates for the Underwritten
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, will be made available for examination and packaging by [Managing
Underwriter] in The City of New York not later than 10:00 A.M. (New York City
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with [Managing
Underwriter] and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430A of the
1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as
applicable, and will notify the [Managing Underwriter] immediately, and confirm
the notice in writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any supplement or amendment to
the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or preliminary prospectus
supplement, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 of the 1933 Act
Regulations and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give [Managing Underwriter] notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish [Managing Underwriter] with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which [Managing Underwriter] or
counsel for the Underwriters shall object. To the extent the distribution of
Underwritten Securities has been completed, the Company will not be required to
provide [Managing Underwriter] with reports it is required to file with the
Commission under the 1934 Act.
<PAGE>
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to [Managing Underwriter] and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to [Managing Underwriter], without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus or preliminary
prospectus supplement as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Purchase Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the reasonable opinion of outside counsel for the Underwriters or for the
Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of such outside counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
<PAGE>
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
[Managing Underwriter] may designate and to maintain such qualifications in
effect for so long as may be reasonably necessary to complete the distribution
of the Underwritten Securities; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any related Underlying
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as may be reasonably necessary to complete
the distribution of the Underwritten Securities.
(g) Earnings Statement. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reservation of Securities. If the applicable Terms Agreement specifies that
any related Underlying Securities include Common Stock, Preferred Stock and/or
Depositary Shares, the Company will reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of shares of
Common Stock and/or Preferred Stock, as applicable, for the purpose of enabling
the Company to satisfy any obligations to issue such Underlying Securities upon
exercise of the related Warrants, as applicable, or upon conversion of the
Preferred Stock, Depositary Shares, Senior Debt Securities or Subordinated Debt
Securities or Units, as applicable.
(i) Use of Proceeds. The Company will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its reasonable efforts to effect the listing
of the Underwritten Securities and any related Underlying Securities, prior to
the Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of the applicable Terms
Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of [Managing
Underwriter], directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement, except, in the case of an offering of
Underwritten Securities containing Common Stock or Equity Warrants or any
Underwritten Security convertible into Common Stock, the Company may issue
Common Stock pursuant to the exercise of any options granted by the Company
under any option plans described in the Prospectus or whose description is
incorporated by reference into the Prospectus.
<PAGE>
(l) Reporting Requirements. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the performance of
its obligations under this Purchase Agreement or the applicable Terms Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
Underwritten Securities and any related Underlying Securities, any certificates
for the Underwritten Securities or such Underlying Securities or Depositary
Receipts evidencing the Depositary Shares, as applicable, to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the Underwriters,
(iii) the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of the Trustees, any Depositary and any Warrant Agent,
and their respective counsel, (iv) the qualification of the Underwritten
Securities and any related Underlying Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (v) the printing and
delivery to the Underwriters of copies of each preliminary prospectus,
preliminary prospectus supplement, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities and any related Underlying Securities, if applicable, (vii) the fees
and expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, (viii) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, and (ix) the fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Section 2(l) of Schedule E of the bylaws
of the NASD), if applicable. Except as set forth in clauses (iv) and (viii) of
this Section 4(a) or upon termination of this Agreement in accordance with the
provisions of Section 5 or 9(a), the Company shall not be obligated to pay any
fees or disbursements of counsel for the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is terminated by
[Managing Underwriter] in accordance with the provisions of Section 5 or Section
9(a) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
<PAGE>
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy when made and on the
applicable Delivery Date of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3), (4)
or (5), as applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434
of the 1933 Act Regulations, a Term Sheet including the Rule 434 Information
shall have been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, [Managing Underwriter]
shall have received the favorable opinion, dated as of Closing Time, of Latham &
Watkins and the General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect set
forth in Exhibit B hereto or to the effect set forth as an Exhibit to the
applicable Terms Agreement.
(c) Opinion of Counsel for Underwriters. On such Delivery Date, [Managing
Underwriter] shall have received the favorable opinion reasonably satisfactory
to the Underwriters, dated as of Closing Time, of counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to [Managing
Underwriter]. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. On such Date of Delivery, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition or in the earnings or business affairs, or any
development involving a prospective material adverse change in the financial
condition, earnings or business affairs, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and [Managing Underwriter] shall have received a certificate of the
<PAGE>
President or a Vice President of the Company and of the chief financial officer
or chief accounting officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) are true and correct with the
same force and effect as though expressly made at and as of such Date of
Delivery, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to such Date of
Delivery, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the applicable
Terms Agreement, [Managing Underwriter] shall have received from [independent
auditor] a letter dated such date, in form and substance satisfactory to
[Managing Underwriter], together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, [Managing Underwriter] shall
have received from [independent auditor] a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, unless the
Underwritten Securities being sold pursuant to the applicable Terms Agreement
relate solely to Common Stock or Common Stock Warrants, the Underwritten
Securities shall have the ratings accorded by any "nationally recognized
statistical rating organization," as defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to [Managing
Underwriter] a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to [Managing Underwriter],
confirming that the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a downgrading
in, or withdrawal of, the rating assigned to the Underwritten Securities or any
of the Company's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review its rating of the Underwritten Securities or any of the Company's
other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities shall have
been approved for listing, subject only to official notice of issuance, if and
as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of Underwritten
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
<PAGE>
(j) Lock-up Agreements. On the date of the applicable Terms Agreement, [Managing
Underwriter] shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being required
to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted an
over-allotment option by the Company in the applicable Terms Agreement and the
Underwriters exercise their option to purchase all or any portion of the Option
Underwritten Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company
or any of its subsidiaries hereunder shall be true and correct as of each Date
of Delivery, and, at the relevant Date of Delivery [Managing Underwriter] shall
have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief financial
officer or chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Latham & Watkins and the General
Counsel of the Company and counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(3) The favorable opinion of counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten
Securities and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(4) A letter from [independent auditor], in form and substance
satisfactory to [Managing Underwriter] and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
[Managing Underwriter] pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date of
Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any
of the Company's other securities.
<PAGE>
(l) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be reasonably satisfactory
in form and substance to [Managing Underwriter] and counsel for the
Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by [Managing Underwriter] by notice to the Company
at any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
<PAGE>
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by [Managing
Underwriter]), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through [Managing Underwriter] expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided further that the Company will not be liable to
any Underwriter with respect to any Preliminary Prospectus to the extent that
any such loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Date, a copy of the Final Prospectus,
as then amended or supplemented if: (i) the Company has previously furnished
copies thereof, in accordance with Section 3(d) of this Agreement at least 48
hours prior to the Closing Time, to the Underwriters and the loss, liability,
claim, damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the Preliminary
Prospectus which was corrected in the Final Prospectus as, if applicable,
amended or supplemented prior to the Closing Date and such Final Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such Final Prospectus by
the Closing Date to the party or parties asserting such loss, liability, claim,
damage or expense would have cured the defect giving rise to such loss,
liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through [Managing Underwriter] expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Managing Underwriter],
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
<PAGE>
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid written request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
written request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall have
requested in writing an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(d) effected without its
written consent if (x) such indemnifying party reimburses such indemnified party
in accordance with such request to the extent it considers such request to be
reasonable; and (y) such indemnifying party provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses, or any
action in respect thereof, referred to therein, then each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified
party as a result of such losses, liabilities, claims, damages and expenses, or
any action in respect thereof, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities pursuant to the applicable Terms Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, or any
action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses but
after deducting amounts with respect to any reserves for the payment of interest
in connection with the Debt Securities) received by the Company, on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters, on the other hand, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
<PAGE>
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount paid or payable by an indemnified party as a result of losses,
liabilities, claims, damages and expenses, or action in respect thereof, and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any such action.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to their respective underwriting obligations and not joint.
SECTION 8. Representations, Warranties, Agreements and Indemnities to Survive
Delivery. All representations, warranties, agreements and indemnities contained
in this Purchase Agreement or the applicable Terms Agreement or in certificates
of officers of the Company or any of its subsidiaries submitted pursuant hereto
or thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or controlling person,
or by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
<PAGE>
SECTION 9. Termination.
-----------
(a) Terms Agreement. [Managing Underwriter] may terminate the Purchase Agreement
and the applicable Terms Agreement, by notice to the Company, at any time at or
prior to the Closing Time or any relevant Date of Delivery, if (i) there has
been, since the time of execution of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities or any related Underlying Securities include Debt Securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of [Managing Underwriter], impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities or, if the Underwritten Securities or any related
Underlying Securities include Debt Securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(b) Liabilities. If this Purchase Agreement and the applicable Terms Agreement
is terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as
the case may be, to purchase the Underwritten Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then [Managing Underwriter] shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, [Managing Underwriter] shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
<PAGE>
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter, except that the Company
shall continue to be liable for the payment of expenses to the extent set forth
in Sections 4 and 11.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either [Managing Underwriter] or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [Managing Underwriter] at [address of Managing
Underwriter], attention of ____________________; and notices to the Company
shall be directed to it at U.S. Wireless Corporation, 2303 Camino Ramon, Suite
200, San Ramon, California 94583, attention of ________________________.
SECTION 12. Parties. This Purchase Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, [Managing
Underwriter] and, upon execution of such Terms Agreement, any other Underwriters
and their respective successors. Nothing expressed or mentioned in this Purchase
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Purchase Agreement or such Terms Agreement or any provision
herein or therein contained. This Purchase Agreement and such Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Underwritten Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS PURCHASE AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Purchase Agreement, along with all counterparts, will become a binding
agreement between [Managing Underwriter] and the Company in accordance with its
terms.
Very truly yours,
U.S. WIRELESS CORPORATION
By: _________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[MANAGING UNDERWRITER]
By: _____________________________
Authorized Signatory
<PAGE>
Exhibit A
U.S. WIRELESS CORPORATION
(a Delaware corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares,
Debt Securities and Warrants to Purchase Debt Securities,
Units
TERMS AGREEMENT
___________, 2000
To: U.S. Wireless Corporation
2303 Camino Ramon, Suite 200
San Ramon, California 94583
Ladies and Gentlemen:
We understand that U.S. Wireless Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell [_______ shares of its common stock,
par value $.01 per share (the "Common Stock")] [________ shares of its preferred
stock, par value $.01 per share (the "Preferred Stock")] [in the form of
_________ depositary shares (the "Depositary Shares") each representing _______
of a share of Preferred Stock] [$ _______ aggregate principal amount of its
[senior] [subordinated] debt securities (the "Debt Securities")] [_______
warrants (the "Common Stock Warrants") to purchase common stock, par value $.01
per share] [_______ warrants (the "Preferred Stock Warrants") to purchase
preferred stock, par value $.01 per share] [________ warrants (the "Debt
Security Warrants") to purchase $_________ aggregate principal amount of
[senior] [subordinated] debt securities] [________units (the "Units") consisting
of ________ ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
<PAGE>
[Number]
[Principal Amount]
Underwriter....... of [Initial] Underwritten Securities
- --------------------------------------------------------------------------------
Total ......... [$]
===
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends,
if any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from
_____
Other terms and conditions:
Closing date and location:
<PAGE>
[Depositary Shares]
[Title:
Fractional amount of Preferred Stock represented by each Depositary
Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends,
if any, from ___
Purchase price per share: $____ plus accumulated dividends, if any, from
___
Other terms and conditions:
Closing date and location:]
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
<PAGE>
If Fixed Price Offering, initial public offering price per
share: % of the principal amount, plus accrued interest [amortized
original issue discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from -----------------.
Form:
Other terms and conditions:
Closing date and location:
<PAGE>
[Common Stock] [Preferred Stock] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Debt Securities]: [Yes]
[No]
Number of [Common Stock] [Preferred Stock] [Debt Security] Warrants issued with
each [share of Common Stock] [share of Preferred Stock] [$__________ principal
amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred
Stock] [Debt Security] Warrants are exercisable: Date(s) on which
[Common Stock] [Preferred Stock] [Debt Security] Warrants expire:
Exercise price(s):
Initial public offering price: $
Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one
[Common Stock] [Preferred Stock] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
[Units]
Title:
Number:
Consisting of: [Number and title of securities]
Unit Agent:
All of the provisions contained in the document attached as Annex I
hereto entitled "U.S. WIRELESS CORPORATION -- Common Stock, Warrants to Purchase
Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock, [Depositary
Shares,] Debt Securities, Warrants to Purchase Debt Securities and
Units--Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Counsel to the Company will be required to deliver an opinion in the
form attached hereto.
<PAGE>
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[MANAGING UNDERWRITER]
By: ___________________________________
Authorized Signatory
[Acting on behalf of itself
and the other named Underwriters.]
Accepted:
U.S. WIRELESS CORPORATION
By: _________________________
Name:
Title:
EXHIBIT 4.1
U.S. WIRELESS CORPORATION
AND
___________________________________, Trustee
Indenture
Dated as of _______________
Senior Debt Securities
<PAGE>
Reconciliation and tie between
the Trust Indenture Act of 1939
and Indenture,
dated as of __________*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
Section 3.10(a)(1) 6.09
<S> <C> <C>
(a)(2)..............................................................................................6.09
(a)(3)....................................................................................Not Applicable
(a)(4)....................................................................................Not Applicable
(a)(5)........................................................................................6.08, 6.10
(b)...........................................................................................6.08, 6.10
(c).......................................................................................Not Applicable
Section 3.11(a)...............................................................................................6.13
(b).................................................................................................6.13
Section 3.12(a)......................................................................................7.01, 7.02(a)
(b)..............................................................................................7.02(b)
(c).................................................................................................7.03
Section 3.13(a)...............................................................................................7.03
(b).................................................................................................7.03
(c).................................................................................................7.03
(d).................................................................................................7.03
Section 3.14(a)........................................................................................7.04, 10.05
(b).......................................................................................Not Applicable
(c)(1)..............................................................................................1.02
(c)(2)..............................................................................................1.02
(c)(3)....................................................................................Not Applicable
(d).......................................................................................Not Applicable
(e).................................................................................................1.02
(f).......................................................................................Not Applicable
Section 3.15(a)...............................................................................................6.01
(b).................................................................................................6.02
(c).................................................................................................6.01
(d).................................................................................................6.01
(e).................................................................................................5.14
Section 3.16(a)...............................................................................................1.01
(a)(1)(A)...........................................................................................5.12
(a)(1)(B)...........................................................................................5.13
(a)(2)....................................................................................Not Applicable
(b).................................................................................................5.08
Section 3.17(a)(1) 5.03
(a)(2)..............................................................................................5.04
(b)................................................................................................10.03
Section 3.18(a)...............................................................................................1.07
(c).................................................................................................1.07
</TABLE>
* This table shall not, for any purpose, be deemed to be a part of the
Indenture.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
ARTICLE I.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
Section 1.01 Definitions.....................................................................................1
Section 1.02 Compliance Certificates and Opinions............................................................8
Section 1.03 Form of Documents Delivered to Trustee..........................................................8
Section 1.04 Acts of Holders; Record Dates...................................................................9
Section 1.05 Notices, Etc., to Trustee and Company..........................................................10
Section 1.06 Notice to Holders; Waiver......................................................................11
Section 1.07 Conflict with Trust Indenture Act..............................................................11
Section 1.08 Effect of Headings and Table of Contents.......................................................11
Section 1.09 Successors and Assigns.........................................................................11
Section 1.10 Separability Clause............................................................................12
Section 1.11 Benefits of Indenture..........................................................................12
Section 1.12 Governing Law..................................................................................12
Section 1.13 Legal Holidays.................................................................................12
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities............................................................................12
Section 2.02 Form of Trustee's Certificate of Authentication................................................13
Section 2.03 Securities in Global Form......................................................................13
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series...........................................................14
Section 3.02 Denominations..................................................................................16
Section 3.03 Execution, Authentication, Delivery and Dating.................................................16
Section 3.04 Temporary Securities...........................................................................18
Section 3.05 Registration, Registration of Transfer and Exchange and Book-Entry Securities..................18
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities...............................................21
Section 3.07 Payment of Interest; Interest Rights Preserved.................................................21
Section 3.08 Persons Deemed Owners..........................................................................23
Section 3.09 Cancellation...................................................................................23
Section 3.10 Computation of Interest........................................................................23
<PAGE>
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture........................................................23
Section 4.02 Application of Trust Money.....................................................................25
ARTICLE V.
REMEDIES
Section 5.01 Events of Default..............................................................................25
Section 5.02 Acceleration of Maturity; Rescission and Annulment.............................................28
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee................................29
Section 5.04 Trustee May File Proofs of Claim...............................................................30
Section 5.05 Trustee May Enforce Claims Without Possession of Securities....................................30
Section 5.06 Application of Money Collected.................................................................31
Section 5.07 Limitation on Suits............................................................................31
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest......................32
Section 5.09 Restoration of Rights and Remedies.............................................................32
Section 5.10 Rights and Remedies Cumulative.................................................................32
Section 5.11 Delay or Omission Not Waiver...................................................................32
Section 5.12 Control by Holders.............................................................................33
Section 5.13 Waiver of Defaults.............................................................................33
Section 5.14 Undertaking for Costs..........................................................................34
Section 5.15 Waiver of Stay or Extension Laws...............................................................34
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities............................................................34
Section 6.02 Notice of Defaults.............................................................................36
Section 6.03 Certain Rights of Trustee......................................................................36
Section 6.04 Not Responsible for Recitals or Issuance of Securities.........................................37
Section 6.05 May Hold Securities............................................................................37
Section 6.06 Money Held in Trust............................................................................37
Section 6.07 Compensation and Reimbursement.................................................................38
Section 6.08 Disqualification; Conflicting Interests........................................................38
Section 6.09 Corporate Trustee Required; Eligibility........................................................38
Section 6.10 Resignation and Removal; Appointment of Successor..............................................39
Section 6.11 Acceptance of Appointment by Successor.........................................................40
Section 6.12 Merger, Conversion, Consolidation or Succession to Business....................................41
Section 6.13 Preferential Collection of Claims Against Company..............................................41
Section 6.14 Appointment of Authenticating Agent............................................................42
<PAGE>
ARTICLE VII.
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders......................................43
Section 7.02 Preservation of Information; Communications to Holders.........................................44
Section 7.03 Reports by Trustee.............................................................................44
Section 7.04 Reports by Company.............................................................................44
Section 7.05 Holders' Meetings..............................................................................45
ARTICLE VIII.
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms...........................................47
Section 8.02 Successor Substituted..........................................................................48
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.............................................48
Section 9.02 Supplemental Indentures With Consent of Holders................................................50
Section 9.03 Execution of Supplemental Indentures...........................................................51
Section 9.04 Effect of Supplemental Indentures..............................................................51
Section 9.05 Conformity with Trust Indenture Act............................................................51
Section 9.06 Reference in Securities to Supplemental Indentures.............................................51
Section 9.07 Notice of Supplemental Indenture...............................................................52
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.....................................................52
Section 10.02 Maintenance of Office or Agency................................................................52
Section 10.03 Money for Securities Payments to Be Held in Trust..............................................53
Section 10.04 Corporate Existence............................................................................54
Section 10.05 Statement by Officers as to Default............................................................54
Section 10.06 Payment of Taxes...............................................................................54
Section 10.07 Calculation of Original Issue Discount.........................................................54
Section 10.08 Waiver of Certain Covenants....................................................................54
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.......................................................................55
Section 11.02 Election to Redeem; Notice to Trustee..........................................................55
Section 11.03 Selection by Trustee of Securities to Be Redeemed..............................................55
Section 11.04 Notice of Redemption...........................................................................56
Section 11.05 Deposit of Redemption Price....................................................................57
Section 11.06 Securities Payable on Redemption Date..........................................................57
Section 11.07 Securities Redeemed in Part....................................................................57
<PAGE>
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article.......................................................................57
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with Securities................................58
Section 12.03 Redemption of Securities for Mandatory Sinking Fund............................................58
ARTICLE XIII.
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.......................................................................59
Section 13.02 Notice of Repayment Date.......................................................................59
Section 13.03 Deposit of Repayment Price.....................................................................59
Section 13.04 Securities Payable on Repayment Date...........................................................60
Section 13.05 Securities Repaid in Part......................................................................60
ARTICLE XIV.
CONVERSION OF SECURITIES
Section 14.01 General........................................................................................60
Section 14.02 Right to Convert...............................................................................61
Section 14.03 Manner of Exercise of Conversion Privilege; Delivery of Common Stock; No Adjustment
for Interest or Dividends......................................................................61
Section 14.04 Cash Payments in Lieu of Fractional Shares.....................................................62
Section 14.05 Conversion Price Adjustments; Effect of Reclassification, Mergers, Consolidations and
Sales of Assets................................................................................62
Section 14.06 Taxes on Shares Issued.........................................................................66
Section 14.07 Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common
Stock..........................................................................................67
Section 14.08 Responsibility of Trustee......................................................................67
Section 14.09 Covenant to Reserve Shares.....................................................................67
Section 14.10 Other Conversions..............................................................................68
ARTICLE XV.
DEFEASANCE AND COVENANT DEFEASANCE
Section 15.01 Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance.........68
Section 15.02 Defeasance and Discharge.......................................................................68
Section 15.03 Covenant Defeasance............................................................................69
Section 15.04 Conditions to Defeasance or Covenant Defeasance................................................69
Section 15.05 Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.......................................................................71
Section 15.06 Reinstatement..................................................................................71
ARTICLE XVI.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 16.01 Immunity of Incorporators, Stockholders, Officers and Directors................................72
</TABLE>
<PAGE>
INDENTURE, dated as of __________, 2000, between U.S. WIRELESS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
2303 Camino Ramon, Suite 200, San Ramon, California 94583, and
_____________________, a national banking association duly organized and
existing under the laws of the United States, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsubordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, 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;
(4) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article VI, are defined in that
Article.
<PAGE>
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board or any director or directors
and/or officer or officers of the Company to whom that board or committee shall
have duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
<PAGE>
"Conversion Price" means with respect to any series of Securities which
are convertible into Common Stock or Preferred Stock, the price per share of
Common Stock or Preferred Stock, as the case may be, at which the Securities of
such series are so convertible as set forth in the Board Resolution with respect
to such series (or in any supplemental indenture entered into pursuant to
Section 9.01(9) with respect to such series), as the same may be adjusted from
time to time in accordance with Section 14.05 (or such supplemental indenture
pursuant to Section 14.01).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at
__________________________.
"Corporation" includes corporations, associations, companies and
business trusts.
"Debt" means (a) all indebtedness of the Company (including Securities
issued hereunder) whether heretofore or hereafter incurred (i) for borrowed
money or (ii) in connection with the acquisition by the Company or a Subsidiary
of assets other than in the ordinary course of business, for the payment of
which the Company is liable directly or indirectly by guarantee, letter of
credit, obligation to purchase or acquire or otherwise, or the payment of which
is secured by a lien, charge or encumbrance on assets acquired by the Company,
(b) amendments, modifications, renewals, extensions and deferrals of any such
indebtedness and (c) any indebtedness issued in exchange for any such
indebtedness.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, or any
successor thereto, which shall in either case be designated by the Company
pursuant to Section 3.01 or 3.05 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder.
"Event of Default" has the meaning specified in Section 5.01.
"generally accepted accounting principles" or "GAAP" means, as of any
date of computation, generally accepted accounting principles in the United
States, consistently applied, that are in effect on the date of such
computation.
<PAGE>
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"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.
"Lien" means, with respect to any Property, any Mortgage or deed of
trust, pledge, hypothecation, security interest, lien, encumbrance or other
security arrangement of any kind or nature on or with respect to such Property.
"Loan Document" has the meaning specified in Section 5.01(5).
"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 by repayment or otherwise.
"NNM" has the meaning specified in Section 14.05(a)(v).
"Notice of Default" has the meaning specified in Section 5.01(4).
"Officers' Certificate" means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
the Vice Chairman of the Board, the President, an Executive Vice President or a
Senior Vice President, and the other signature being that of the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
<PAGE>
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) 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; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities with respect to which the Company has
effected defeasance as provided in Article XV;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, and (b) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
<PAGE>
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any stock of any class of the Company which has
a preference over Common Stock in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and that is not mandatorily redeemable or repayable, or
redeemable or repayable at the option of the Holder, otherwise than in shares of
Common Stock or Preferred Stock of another class or series or with the proceeds
of the sale of Common Stock or Preferred Stock.
"Property" means any building, structure or other facility, together
with the land upon which it is erected and fixtures comprising a part thereof,
used primarily for selling automotive parts and accessories or the warehousing
or distributing of such products, owned or leased by the Company or any
Subsidiary of the Company.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of __________________,
____________________ and ____________________ and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer by 5:00 p.m. on the
third Business Day preceding such redemption date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
<PAGE>
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation or a limited partnership more than 50%
of the outstanding voting stock or limited partnership interests of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Time of Determination" has the meaning specified in Section
14.05(a)(v).
"Trading Day" has the meaning specified in Section 14.05(a)(v).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America.
"U.S. Government Obligations" has the meaning specified in Section 15.04.
"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."
<PAGE>
Section 1.02 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided for in Section 10.05) shall include:
(1) A statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, 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 are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
<PAGE>
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders; Record Dates.
-----------------------------
(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 an 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 (subject to Section 6.01) 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 Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or in the case of any such vote, prior to such vote,
the record date for any such action or vote shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 7.01) prior to such first solicitation or vote, as the case may be. With
regard to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
<PAGE>
(f) 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. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(g) Without limiting the generality of the foregoing, unless otherwise specified
pursuant to Section 3.01 or pursuant to one or more indentures supplemental
hereto, a Holder, including a Depositary that is the Holder of a Global
Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(h) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
Section 1.05 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention:
<PAGE>
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Secretary, or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.06 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 3.10 through 3.17, inclusive, of the Trust Indenture
Act through the operation of Section 3.18(c) thereof, such imposed duties 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 shall be
deemed to be so excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
<PAGE>
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided that this
Section 1.11 shall not limit the rights of any Holder of a Global Security to
give any notice or take any action, or appoint any agents, with regard to any
part or different parts of the principal amount of such Global Security pursuant
to Section 1.04.
Section 1.12 Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said state without
regard to the conflicts of laws and rules of said state.
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities.
-------------------
The Securities of each series shall be in such form or forms (including
global 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 law or with any rules made pursuant thereto or the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
<PAGE>
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 2.02 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
as Trustee
By
Authorized Officer
Section 2.03 Securities in Global Form.
-------------------------
If any Security of a series is issuable in global form, such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and also may provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified in such Security. Any instructions by the
Company with respect to a Security in global form, after its initial issuance,
shall be in writing but need not comply with Section 1.02.
<PAGE>
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and, to the extent
not set forth therein, set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities will be issued;
(3) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of
that series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.06, 13.05 or
14.03);
(4) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method of
determination thereof, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date or, if the principal amount payable at the Stated
Maturity of any of the Securities will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which will
be deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and
payable upon any Maturity other than the Stated Maturity or which will
be deemed to be Outstanding as of any such date (or, in any such case,
the manner in which such deemed principal amount is to be determined);
(6) if other than the Corporate Trust Office, the place or places where the
principal of (and premium, if any) and interest on Securities of the
series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
<PAGE>
(8) the obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any mandatory sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(11) if the Securities of the series shall be issued in whole or in part in
the form of a Global Security or Securities, the terms and conditions
upon which such Global Security may be exchanged in whole or in part
for other individual securities and the Depositary for such Global
Security or Securities;
(12) any addition to or change in the Events of Default which applies to any
Securities of the series;
(13) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series;
(14) if the Securities of the series are convertible into Common Stock or
Preferred Stock, the Conversion Price therefor, the period during which
such Securities are convertible and any terms and conditions for the
conversion of such Securities which differ from Article XIV;
(15) the nature and terms of the security for any secured Securities;
(16) the form and terms of any guarantee of the Securities;
(17) the application, if any, of Section 15.02 or 15.03 to the Securities
of the series and any provisions in modification of, in addition to or
in lieu of any of the provisions of Article XV;
(18) the listing of the Securities on any securities exchange or the
inclusion in any other market or quotation or trading system;
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
<PAGE>
(20) if the principal amount payable at the stated maturity of any of such
Securities will not be determinable as of any one or more dates prior
to the stated maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any
maturity other than the stated maturity or which will be deemed to be
outstanding as of any such date (or, in any such case, the manner in
which such deemed principal amount is so determined); and
(21) any trustee or fiscal or authenticating or paying agent, issuing or
paying agent, transfer agent or registrar or any other person or entity
to act in connection with such Securities for or on behalf of the
holders thereof or the Company or an affiliate.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate, to the
extent applicable, or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuance of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
-------------
The Securities of each series shall be issuable in registered form with
or without coupons in such denominations as shall be specified as contemplated
by Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President, an
Executive Vice President or one of its Senior Vice Presidents and attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board Resolution
relating to such Securities shall so permit, such Company Order may set forth
procedures (acceptable to the Trustee) for the issuance and authentication of
such Securities.
<PAGE>
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, 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 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then 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 Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series having the same terms issued and not yet
canceled, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
<PAGE>
Section 3.04 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security in lieu of which it is issued.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
Section 3.05 Registration, Registration of Transfer and Exchange and Book-
Entry Securities.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 10.02 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of exchanges and transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided. The exchange of and the transfer of Securities
also may be registered at the office of the Trustee.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
<PAGE>
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities) of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06, 11.06, 13.05 or 14.03 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.02 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 3.05, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary 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 condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Security or Securities
of the same series, of any authorized denomination as requested by such
Person, in an aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to Clause (i) above.
<PAGE>
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
canceled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 3.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, together with
such other security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions. Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (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 Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
<PAGE>
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners.
---------------------
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 3.09 Cancellation.
------------
Unless otherwise specified pursuant to Section 3.01(7) for Securities
of any series all Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any mandatory sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee, except that if a Global Security is so surrendered, the Company shall
execute and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the portion of the
Global Security so surrendered not to be paid, redeemed, repaid or registered
for transfer or exchange or for credit. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of in accordance with its customary procedures and
a certificate of disposition shall be delivered to the Company, unless, by a
Company Order, the Company shall direct the canceled Securities be returned to
it.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
---------------------------------------
Upon Company Request, this Indenture shall cease to be of further
effect with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee
for cancellation; or
<PAGE>
(B) all Securities of such series not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year,
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose sums
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
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; and
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such Securities; 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 with respect to the Securities of such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of a particular series, the obligations of the Company
to the Trustee under Section 6.07, the obligations, if any, of the Trustee to
any Authenticating Agent under Section 6.14 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 4.02 and the last
paragraph of Section 10.03, in each case with respect to such Securities, shall
survive.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements of the Company under this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.07, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive with respect to such
series of Securities.
Section 4.02 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 4.01 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
<PAGE>
ARTICLE V.
REMEDIES
Section 5.01 Events of Default.
-----------------
Unless otherwise provided in a supplemental indenture hereto, "Event of
Default," wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) failure to pay principal of (or premium, if any, on) any Security of
that series at its Maturity, upon redemption or otherwise; or
(2) failure to pay any interest upon any Security of that series when due,
and the default continues for 30 days; or
(3) default in the deposit of any mandatory sinking fund payment, when and
as due by the terms of the Securities of that series, and continuance
of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in a Security of that series or in this Indenture (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default
with respect to Securities of any series other than that series) or
under any mortgage, indenture (including this Indenture) or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any
Subsidiary (each such bond, debenture, note, evidence of indebtedness,
mortgage, indenture or instrument being referred to as a "Loan
Document"), whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay the principal
of such indebtedness at final maturity after the expiration of any
applicable grace period with respect thereto or shall have resulted in
such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration
having been rescinded or annulled within a period of 15 days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder, if the aggregate outstanding
principal amount of indebtedness under the Loan Document with respect
to which such default or acceleration has occurred exceeds $20 million;
provided, however, that if such default under such Loan Document shall
be cured by the Company or be waived by the holders of such
indebtedness or if such acceleration shall be rescinded or annulled, in
each case as may be permitted by such Loan Document, then the Event of
Default hereunder by reason of such default shall be deemed likewise to
have been thereupon cured or waived; and provided, further, that,
subject to the provisions of Sections 6.01 and 602, the Trustee shall
not be deemed to have knowledge of such default or acceleration unless
either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or acceleration or (B) the Trustee shall have
received written notice thereof from the Company, from any Holder, from
the holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
<PAGE>
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Subsidiary under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company or any Subsidiary of a voluntary case
or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company or any Subsidiary in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Subsidiary or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any Subsidiary in furtherance of
any such action.
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business on the day the Trustee receives such proposed Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such proposed Notice of
Default prior to the day which is 90 days after such record date, such proposed
Notice of Default shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving (i) after expiration of such 90-day
period, a new proposed Notice of Default identical to a proposed Notice of
Default which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional proposed Notice
of Default with respect to any new or different fact or circumstance permitting
the giving of a proposed Notice of Default with respect to Securities of such
series, in either of which events a new record date shall be established
pursuant to the provisions of this Section 5.01. Any such proposed Notice of
Default shall be considered a Notice of Default hereunder at such time, if any,
that Holders of at least 25% in principal amount of the Outstanding Securities
shall have joined in such proposed Notice of Default by giving timely notice to
the Trustee hereunder.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in Section 5.01(6) or (7)) at the time
Outstanding occurs and is continuing, then in every such case, the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of said amounts,
all obligations of the Company in respect of payment of principal of the
Securities of such series shall terminate. Notwithstanding the foregoing, if an
Event of Default specified in Section 5.01(6) or (7) hereof occurs with respect
to the Company, all Outstanding Securities shall become immediately due and
payable without further action or notice.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
<PAGE>
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the 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 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, or (ii) during any such
90-day period, an additional written notice of declaration of acceleration with
respect to Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to any
other Event of Default with respect to Securities of such series, in either of
which events a new record date shall be established pursuant to the provisions
of this Section 5.02.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
(3) default is made in the making or satisfaction of any mandatory
sinking fund payment when it becomes due pursuant to the terms of the
securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may, but shall
not be obligated to, institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
<PAGE>
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file and prove a
claim for the whole amount of principal, premium and interest owing and unpaid
in respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article of any
series shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of any series and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of
such series in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or to whomsoever
may be lawfully entitled to receive the same as a court of competent
jurisdiction may direct.
Section 5.07 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
<PAGE>
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or of the Holders of Outstanding Securities of any other series,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption or repayment at the
option of the Holder, on the Redemption Date or the Repayment Date, as the case
may be) and (if the terms of such Security so provide) to have such Security
converted into Common Stock pursuant to Article XIV and to institute suit for
the enforcement of any such payment or conversion, and such rights shall not be
impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
<PAGE>
Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12 Control by Holders.
------------------
The Holders of at least a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 1.04(e). The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been canceled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 5.12.
Section 5.13 Waiver of Defaults.
------------------
By Act delivered to the Company and the Trustee, the Holders of not
less than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the Holders of all the Securities of such
series waive any existing Event of Default hereunder with respect to such series
and its consequences (including an acceleration and its consequences, including
any related payment default that resulted from such acceleration), except an
Event of Default
(1) in the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any mandatory sinking
fund installment with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any
Security on or after the Stated Maturity expressed in such Security (or, in the
case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be, and (if the terms of such
Security so provide) to have such Security converted into Common Stock pursuant
to Article XIV). Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
of this Indenture are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
<PAGE>
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series 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; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or interest on
any Security of such series or in the payment of any mandatory sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee of the board of directors and/or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities of such series; and provided,
further, that in the case of any default of the character specified in Section
5.01(4) with respect to the Securities of such series no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
Section 6.03 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
<PAGE>
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be required to take notice or be deemed to have notice
of any default hereunder (except failure by the Company to pay principal of or
interest on any series of Securities so long as the Trustee is also acting as
Paying Agent for such series of Securities) unless the Trustee shall be
specifically notified in writing of such default by the Company by the Holders
of at least a 10% in aggregate principal amount of all Outstanding Securities,
and all such notices or other instruments required by this Indenture to be
delivered to the Trustee must, in order to be effective, be delivered at the
principal Corporate Trust Office of the Trustee, and in the absence of such
notice the Trustee may conclusively assume there is no default except as
aforesaid.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof. The Trustee shall not be
deemed to have knowledge of the identity of any Subsidiary unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
<PAGE>
Section 6.05 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.06 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.07 Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for the
Trustee's services rendered hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
the Trustee's part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
Trustee's costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of the
Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Section 6.08 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 3.10 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. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities except as may be otherwise provided by the terms of the Securities
of that series.
Section 6.09 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 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.
<PAGE>
(c) The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 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 6.09 and shall
fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any or all Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or Trustees with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of that or those 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 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.06. Each notice of
appointment 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 Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 6.07.
<PAGE>
(b) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 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. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 3.11 of the Trust Indenture Act regarding the collection
of such claims against the Company (or any such other obligor). A Trustee that
has resigned or been removed shall be subject to and comply with said Section
3.11 to the extent required thereby.
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 3.06, 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.
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 shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
<PAGE>
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent. An Authenticating
Agent for any series of Securities may resign at any time by giving written
notice thereof 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 for such series by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request
of the Company, the Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, pursuant to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series described therein referred
to in the within-mentioned Indenture.
- -------------------------,
as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
ARTICLE VII.
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular Record Date relating
to that series (or, if there is no Regular Record Date relating to that series,
on June 30 and December 31), a list, in such form as such Trustee may reasonably
require, of the names and addresses of the Holders of that series as of such
date, and
(b) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that if and so long as the Trustee is Security
Registrar with respect to Securities of a particular series no such list shall
be required with respect to the Securities of such series.
Section 7.02 Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
<PAGE>
(c) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
Section 7.03 Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with the year _____, the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act if and to the extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04 Reports by Company.
------------------
(a) The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports to the Trustee is for
informational purposes only and the Trustee's receipt of such reports shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(b) Commencing one year from the date hereof, the Company shall furnish to the
Trustee annually the notice required by Section 10.07 hereof (if required) and a
statement as to the performance by the Company of its obligations hereunder and
as to any Event of Default.
Section 7.05 Holders' Meetings.
-----------------
(a) A meeting of Holders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Section 7.05 for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for such series, or
to give any directions to the Trustee for such series, or to consent to
the waiving of any default hereunder and its consequences, or to take
any other action authorized to be taken by Holders pursuant to any of
the provisions of Article V;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or supplemental indentures
hereto pursuant to the provisions of Section 9.02;
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Outstanding
Securities of any one or more or all series, as the case may be, under
any other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time call a meeting of Holders of such
series to take any action specified in paragraph (a) of this Section 7.05, to be
held at such time or times and at such place or places as the Trustee for such
series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of such
series in the manner and to the extent provided in Section 1.05. Such notice
shall be given not less than 20 days nor more than 90 days prior to the date
fixed for the meeting.
<PAGE>
(c) In case at any time the company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized by giving notice thereof as provided in the preceding paragraph.
(d) to be entitled to vote at any meeting of Holders a Person shall be (a) a
Holder of a Security of the series with respect to which such meeting is being
held or (b) a Person appointed by an instrument in writing as agent or proxy by
such Holder. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the series with respect
to which such meeting is being held and its counsel and any representatives of
the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee for any
series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in paragraph (c) of this
Section 7.05, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Securities of such series held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Securities of such
series held by him or instruments in writing duly designating him as the person
to vote on behalf of Holders of Debt Securities of such series. Any meeting of
Holders with respect to which a meeting was duly called pursuant to the
provisions of paragraph (b) or (c) of this Section 7.05 may be adjourned from
time to time by a majority of such Holders present and the meeting may be held
as so adjourned without further notice.
(f) Voting. The vote upon any resolution submitted to any meeting of Holders
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities held
or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was transmitted as provided in paragraph (b) of this Section 7.05. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 7.05 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Securities of any series.
<PAGE>
ARTICLE VIII.
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its property or assets to any Person unless:
(1) in case the Company shall consolidate with or merge into another Person
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its property or assets to any Person, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company shall be either the Company or a
corporation, shall be organized and validly existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto executed and delivered to the Trustee, all obligations
hereunder, including the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately prior to and after giving effect to such transaction, and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Notwithstanding the foregoing, any Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company.
Section 8.02 Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the property or assets of the
Company in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of its property or assets is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities. In the case of a lease, the predecessor Person
shall not be released from its obligations to pay the principal of, premium, if
any, and interest on the Securities. All Securities issued by the successor
Person shall in all respects have the same legal priority as the Securities
theretofore or thereafter authenticated, issued and delivered in accordance with
the terms of this Indenture.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may amend
the Securities of a series or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
<PAGE>
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such Events of Default are
to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture,
including, without limitation, and notwithstanding any other clause in
this Section 9.01, Sections 1.01 and 5.01, and Articles X and XV, in
respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to Section 8.01 or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(10) to effectuate the provisions of Section 14.05(b); or
(11) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge
and covenant defeasance with respect to any series of Securities
pursuant to Sections 15.02 or 15.03; provided, however, that any such
action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any
material respect; or
(12) to add or change or eliminate any provisions of this Indenture as shall
be necessary or desirable in accordance with any amendments to the
Trust Indenture Act or to comply with any requirements of the
Commission in connection with the qualification of this Indenture under
the Trust Indenture Act; or
(13) (A) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or (B) to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (13)(B) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect;
(14) to change any place or places where (1) the principal of and premium,
if any, and interest, if any, on all or any series of Securities shall
be payable, (2) all or any series of Securities may be surrendered for
registration or transfer, (3) all or any series of Securities may be
surrendered for exchange, and 4) notices and demands to or upon the
Company in respect of all or any series of Securities and this
Indenture may be served; or
(15) to waive a default in the payment of the principal of, or interest on,
any Security, except as otherwise provided herein.
<PAGE>
Section 9.02 Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of, premium, if any, 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, the payment of any
mandatory sinking fund or analogous obligation, change the method of
determination of interest thereon, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or the interest thereon is payable or impair the right of any
Holders of Securities of a Series entitled to the conversion rights set
forth in Article XIV to receive securities upon the exercise of such
conversion rights, or impair the right to institute suit for the
enforcement of any such payment or delivery of Common Stock or
Preferred Stock for Securities converted pursuant to Article XIV on or
after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date
or Repayment Date, as the case may be, or in the case of such
conversion, on or after the date of conversion), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) make any change in the provisions concerning waivers of Events of
Default by Holders or the rights of Holders to recover the principal
of, premium, if any, or interest on, any Security or waive an Event of
Default in the payment of the principal of, or interest on, any
Security, except as otherwise provided for herein, or
(4) modify any of the provisions of this Section, Section 5.13 or Section
10.08, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.08, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.01(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
<PAGE>
Section 9.05 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.07 Notice of Supplemental Indenture.
--------------------------------
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture, the Company shall transmit, as provided herein,
to all Holders of any series of the Debt Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental indenture.
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 10.02 Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, conversion or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company terminates the appointment of a Paying Agent
or Security Registrar or conversion agent or otherwise shall fail to maintain
any such required office or agency, the Company shall use its reasonable best
efforts to appoint a successor Paying Agent or Security Registrar or conversion
agent reasonably acceptable to the Trustee. If the Company fails to maintain a
Paying Agent or Security Registrar or conversion agent, the Trustee will act as
such, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.03 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest 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 (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee 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, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee in writing of
its action or failure so to act.
<PAGE>
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 (and
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 written notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, 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 10.04 Corporate Existence.
-------------------
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if in the
judgment of the Company it shall be necessary, advisable or in the interest of
the Company to discontinue the same.
Section 10.05 Statement by Officers as to Default.
-----------------------------------
Pursuant to Section 3.14(a) of the Trust Indenture Act, the Company
will deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company ending after the date hereof, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions, covenants and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided, hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 10.06 Payment of Taxes.
----------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary.
Section 10.07 Calculation of Original Issue Discount.
--------------------------------------
If any Original Issue Discount Securities are issued hereunder, the
Company shall file with the Trustee promptly following the end of each calendar
year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on each series of
outstanding Original Issue Discount Securities as of the end of such year.
<PAGE>
Section 10.08 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 8.01(3) and in Section 10.04
and Sections 10.07 and 10.08, inclusive, with respect to the Securities of any
series if, before the time for such compliance, the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated in Section 3.01 for Securities of any
series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, 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 prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities 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, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.04 Notice of Redemption.
--------------------
Notice of redemption shall, unless otherwise specified by the terms of
the Securities to be redeemed, be given not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 1.06.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the Company
pursuant to provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing such
series, if such be the case, together with a brief statement of facts
permitting such redemption,
<PAGE>
(4) if less than all the Outstanding Securities of any series are to be
redeemed (unless all the Securities of such series of a specified tenor
are to be redeemed), the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the Company in each Place of Payment, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.05 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.07 Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
<PAGE>
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series to the
Trustee for cancellation (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company or the Holder, if applicable, pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series or may
apply Securities of such series which have been previously cancelled or
converted; 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 such mandatory sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Mandatory Sinking Fund.
---------------------------------------------------
Not less than 60 days prior to each mandatory 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 mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities or applying previously cancelled Securities of that series pursuant
to Section 12.02 and the basis for such credit and will also deliver to the
Trustee any Securities to be so delivered which have not theretofore been
delivered to the Trustee. Not less than 30 days before each such mandatory
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such mandatory sinking fund payment date in the manner specified
in Section 11.02 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
11.03. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.04, 11.05
and 11.06.
ARTICLE XIII.
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
------------------------
Securities of any series that are repayable before their Stated
Maturity at the option of the Holders shall be repaid in accordance with their
terms and (except as otherwise specified as contemplated by Section 3.01 for
Securities of any series) in accordance with this Article.
Section 13.02 Notice of Repayment Date.
------------------------
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 1.05 and 1.06, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be surrendered for
payment of the Repayment Price, which shall be the office or agency of
the Company in each Place of Payment, and the date by which Securities
must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder must follow to exercise a
repayment right; and
(5) that exercise of the option to elect repayment is irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 13.03 Deposit of Repayment Price.
--------------------------
On or prior to any Repayment Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Repayment Price of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities of
such series which are to be repaid on that date.
<PAGE>
Section 13.04 Securities Payable on Repayment Date.
------------------------------------
The form of option to elect repayment having been delivered as
specified in the form of Security for such series as provided in Section 2.01,
the Securities so to be repaid shall, on the Repayment Date, become due and
payable at the Repayment Price applicable thereto, and from and after such date
(unless the Company shall default in the payment of the Repayment Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for repayment in accordance with said notice, such Security
shall be paid by the Company at the Repayment Price, together with accrued
interest to the Repayment Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest whose Stated
Maturity is on or prior to such Repayment Date will 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 Date according to their terms and
the provisions of Section 3.07.
If any Security to be repaid shall not be so paid upon surrender
thereof for repayment, the principal shall, until paid, bear interest from the
Repayment Date at the rate prescribed in the Security.
Section 13.05 Securities Repaid in Part.
-------------------------
Any Security which by its terms may be repaid in part at the option of
the Holder and which is to be repaid only in part shall be surrendered at any
office or agency of the Company designated for that purpose pursuant to Section
10.02 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE XIV.
CONVERSION OF SECURITIES
Section 14.01 General.
-------
If so provided in the terms of the Securities of any series established
in accordance with Section 3.01, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article XIV and the terms of such series of Securities if such terms differ from
this Article XIV; provided, however, that if any of the terms by which any such
Security shall be convertible into Common Stock are set forth in a supplemental
indenture entered into with respect thereto pursuant to Section 9.01(9) hereof,
the terms of such supplemental indenture shall govern.
Section 14.02 Right to Convert.
----------------
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 3.01 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 14.03. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
<PAGE>
Section 14.03 Manner of Exercise of Conversion Privilege; Delivery of
Common Stock; No Adjustment for Interest or Dividends.
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 10.02
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 14.06. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
14.03. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 14.04. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver to or upon the written
order of the Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same series in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Each conversion shall be deemed
to have been effected as of the date on which such Security shall have been
surrendered (accompanied by the funds, if any, required by the last paragraph of
this Section) and such notice received by the Company, as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be registrable upon such conversion shall become on
said date the Holder of record of the shares represented thereby, provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 14.04 Cash Payments in Lieu of Fractional Shares.
------------------------------------------
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. Instead of any fraction of a share of Common Stock which would
otherwise be deliverable upon the conversion of any Security, the Company shall
pay to the Holder of such Security an amount in cash (computed to the nearest
cent, with one-half cent being rounded upward) equal to the same fraction of the
closing price (determined in the manner provided in Section 14.05(a)(v)) of the
Common Stock on the Trading Day (as defined in Section 14.05(a)(v)) next
preceding the date of conversion.
<PAGE>
Section 14.05 Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets.
(a) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Company shall (x) pay a dividend or make a distribution on
the Common Stock in shares of Common Stock, (y) subdivide the outstanding Common
Stock into a greater number of shares or (z) combine the outstanding Common
Stock into a smaller number of shares, the Conversion Price shall be adjusted so
that the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock of the Company which
such holder would have owned or have been entitled to receive after the
happening of any of the events described above had such Security been converted
immediately prior to the record date in the case of a dividend or the effective
date in the case of subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the record date
in the case of a dividend, except as provided in subparagraph (vii) below, and
shall become effective immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants to all holders of
shares of Common Stock entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
of Common Stock (as defined for purposes of this subparagraph (ii) in
subparagraph (v) below), the Conversion Price in effect after the record date
for the determination of stockholders entitled to receive such rights or
warrants shall be determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at such
current market price, and the denominator of which shall be the number of shares
of Common Stock outstanding on the record date for issuance of such rights or
warrants plus the number of additional shares of Common Stock receivable upon
exercise of such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (vii) below, after such record
date.
(iii) In case the Company shall distribute to all holders of Common Stock
any shares of capital stock of the Company (other than Common Stock) or
evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company or dividends payable in
Common Stock) or rights or warrants to subscribe for or purchase any of its
securities (excluding those rights or warrants referred to in subparagraph (ii)
above) (any of the foregoing being hereinafter in this subparagraph (iii) called
the "Assets"), then, in each such case, the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the record date for determination of
stockholders entitled to receive such distribution by a fraction the numerator
of which shall be the current market price per share (as defined for purposes of
this subparagraph (iii) in subparagraph (v) below) of the Common Stock at such
record date for determination of stockholders entitled to receive such
distribution less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the Assets
so distributed applicable to one share of Common Stock, and the denominator of
which shall be the current market price per share (as defined in subparagraph
(v) below) of the Common Stock at such record date. Such adjustment shall become
effective immediately, except as provided in subparagraph (vii) below, after the
record date for the determination of stockholders entitled to receive such
distribution.
<PAGE>
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of shares
of Common Stock into which a Security is convertible shall have been adjusted
because the Company has declared a dividend, or made a distribution, on the
outstanding shares of Common Stock in the form of any right or warrant to
purchase securities of the Company, or the Company has issued any such right or
warrant, then, upon the expiration of any such unexercised right or unexercised
warrant, the Conversion Price shall forthwith be adjusted to equal the
Conversion Price that would have applied had such right or warrant never been
declared, distributed or issued.
(v) For the purpose of any computation under subparagraphs (ii) or (iii)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices of the Common Stock for the
shorter of (i) 30 consecutive Trading Days ending on the last full Trading Day
on the exchange or market specified in the second following sentence prior to
the Time of Determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such rights or
warrants or such distribution through such last full Trading Day prior to the
Time of Determination. The term "Time of Determination" as used herein shall be
the time and date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the exchange or
market specified in the following sentence. The closing price for each day shall
be the reported last sales price, regular way, or, in case no sale takes place
on such day, the average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange Composite Tape
or, if the Common Stock is not listed or admitted to trading on the New York
Stock Exchange at such time, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the Nasdaq National
Market ("NNM") or, if the Common Stock is not quoted on the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NNM or, if bid and asked prices for the Common Stock on each such
day shall not have been reported through NNM, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange member firm
regularly making a market in the Common Stock selected for such purpose by the
Company or, if no such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Company. As
used herein, the term "Trading Day" with respect to Common Stock means (x) if
the Common Stock is listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New York
Stock Exchange or such other national securities exchange, as the case may be,
is open for business or (y) if the Common Stock is quoted on NNM, a day on which
trades may be made on NNM or (z) otherwise, any day other than a Saturday or
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this subparagraph
(vi) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Section 14.05(a) shall
be made to the nearest cent or to the nearest .01 of a share, as the case may
be, with one-half cent and .005 of a share, respectively, being rounded upward.
Anything in this Section 14.05(a) to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section 14.05(a), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 14.05(a) provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (x) issuing to the
holder of any Security converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (y) paying to such holder any amount of cash in lieu of any
fractional share of Common Stock pursuant to Section 14.04.
<PAGE>
(viii) Whenever the Conversion Price is adjusted as herein provided, the
Company shall file with the Trustee an Officers' Certificate, setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment; provided, however, that the
failure of the Company to file such Officers' Certificate shall not affect the
legality or validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of Securities is adjusted
as provided in this Section 14.05(a), the Company shall cause to be mailed to
each holder of Securities of such series at its then registered address by
first-class mail, postage prepaid, a notice of such adjustment of the Conversion
Price setting forth such adjusted Conversion Price and the effective date of
such adjusted Conversion Price; provided, however, that the failure of the
Company to give such notice shall not affect the legality or validity of any
corporate action by the Company.
(b) (i) (i) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (x) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (y) any consolidation, merger
or combination of the Company with or into another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other entity as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then appropriate provision shall be made by supplemental indenture so that (A)
the holder of any outstanding Security that is convertible into Common Stock
shall have the right to convert such Security into the kind and amount of the
shares of stock and securities or other property or assets (including cash) that
would have been receivable upon such reclassification, change, consolidation,
merger, combination, sale, or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
and (B) the number of shares of any such other stock or securities into which
such Security shall thereafter be convertible shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the terms of adjustment provided for in this Section, and Sections 14.02,
14.03, 14.04, 14.06, 14.07, 14.08 and 14.09 shall apply on like terms to any
such other stock or securities.
(ii) In case of any reclassification or change of the Common Stock (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation, merger or combination of the Company with or
into another corporation or of the sale or conveyance of all or substantially
all of the assets of the Company, the Company shall cause to be filed with the
Trustee and to be mailed to each holder of Securities that are convertible into
shares of Common Stock at such holder's registered address, the date on which
such reclassification, change, consolidation, merger, combination, sale or
conveyance is expected to become effective, and the date as of which it is
expected that holders of Common Stock shall be entitled to exchange their Common
Stock for stock, securities or other property deliverable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance.
Section 14.06 Taxes on Shares Issued.
----------------------
The delivery of stock certificates upon conversions of Securities shall
be made without charge to the holder converting a Security for any tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the delivery
of stock registered in any name other than of the holder of any Security
converted, and the Company shall not be required to deliver any such stock
certificate unless and until the person or persons requesting the delivery
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 14.07 Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
<PAGE>
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange or such other national stock exchange on which
the Common Stock is listed or admitted to trading or if permitted by the rules
of NNM if the Common Stock is approved by it for listing or quotation, list and
keep listed for so long as the Common Stock shall be so listed on such exchange,
upon official notice of issuance, all Common Stock deliverable upon conversion
of Securities of any series which are convertible into Common Stock.
Section 14.08 Responsibility of Trustee.
-------------------------
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article XIV.
Section 14.09 Covenant to Reserve Shares.
--------------------------
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all Outstanding Securities of any series of Securities
which are convertible into Common Stock.
Section 14.10 Other Conversions.
-----------------
If so provided in a Board Resolution with respect to the Securities of
a series, the principal amount of the Securities of such series shall be
convertible into or exchangeable for a principal amount of other securities of
the Company (which other securities may be issued under this Indenture or
otherwise), and the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board Resolution.
ARTICLE XV.
DEFEASANCE AND COVENANT DEFEASANCE
Section 15.01 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 15.02 or (b) covenant
defeasance of the Securities of a series under Section 15.03, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article XV, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section
15.02 (if applicable) or Section 15.03 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article XV.
Section 15.02 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series (except for certain
obligations to register the transfer or exchange of Securities of such series,
to replace stolen, lost or mutilated Securities of such series, and to maintain
paying agencies) on and after the date the conditions precedent set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company and upon Company Request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 15.04 as more fully set forth in such Section,
payments of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to such
Securities under Section 3.04, 3.05, 3.06, 6.07, 10.02 and 10.03 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article XV. Subject to compliance with this Article XV, the Company may
exercise its option under this Section 15.02 notwithstanding the prior exercise
of its option under Section 15.03 with respect to the Securities of such series.
<PAGE>
Section 15.03 Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be released from its obligations under Sections 8.01, 10.04 and
10.06 (and any other covenant applicable to such Securities that is determined
pursuant to Section 3.01 to be subject to covenant defeasance under this
Section) and the occurrence of an event specified in Clause (4) of Section 5.01
with respect to any of Sections 8.01, 10.04 or 10.06 (and any other Event of
Default applicable to such Securities that is determined pursuant to Section
3.01 to be subject to covenant defeasance under this Section) shall not be
deemed to be an Event of Default with respect to the Outstanding Securities of
such series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition, limitation or restrictive covenant set forth in any such
Section or Clause whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Clause or by reason of any reference in
any such Section or Clause to any other provision herein or in any other
document, including any supplement hereto, any Board Resolution or Officers'
Certificate delivered hereto but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 15.04 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application of
either Section 15.02 or Section 15.03 to the Outstanding Securities of a
particular series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 6.09 who shall agree to comply with the provisions of this
Article XV applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, without reinvestment, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereto delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of
and any premium, if any, and interest on the Outstanding Securities of
such series on the maturity of such principal, premium or interest and
(ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on
which such payments are due in accordance with the terms of this
Indenture and of such Securities. 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 XI,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depositary 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 depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 5.01(6) and (7) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit or, if longer, ending on the day following the expiration
of the longest preference period applicable to the Company in respect
of such deposit (it being understood that the condition in this
condition shall not be deemed satisfied until the expiration of such
period). (3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 6.08 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit to constitute, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
<PAGE>
(3) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) In the case of an election under Section 15.02, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of 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 the Outstanding Securities of such series will not
recognize income, gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and discharge and will
be subject to United States federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred.
(5) In the case of an election under Section 15.03, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and covenant
defeasance had not occurred.
(6) Such defeasance or covenant defeasance shall be effected in compliance
with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section
3.01.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
15.02 or the covenant defeasance under Section 15.03 (as the case may
be) have been complied with.
Section 15.05 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee - collectively, for purposes for
this Section 15.05, the "Trustee") pursuant to Section 15.04 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 15.04 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 15.04 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 15.06 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 15.02 or 15.03 with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XV until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 15.02 or 10.53; provided,
however, that if the Company makes any payment of the principal of or any
premium or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
<PAGE>
ARTICLE XVI.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 16.01 Immunity of Incorporators, Stockholders, Officers and Directors.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * *
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
U.S. WIRELESS CORPORATION
By:
Name:
Title:
Attest: `
Name:
Title:
[TRUSTEE]
By:
Name:
Title:
Attest:
Name:
Title:
EXHIBIT 4.2
U.S. WIRELESS CORPORATION
AND
________________________________, Trustee
Indenture
Dated as of __________
Subordinated Debt Securities
<PAGE>
Subordinated Debt Securities
Reconciliation and tie between
the Trust Indenture Act of 1939 and Indenture,
dated as of _____________*
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C> <C>
Section 3.10(a) (1)...........................................................................................6.09
(a) (2)...........................................................................................6.09
(a) (3).................................................................................Not Applicable
(a) (4).................................................................................Not Applicable
(a) (5).....................................................................................6.08, 6.10
(b).........................................................................................6.08, 6.10
(c).....................................................................................Not Applicable
Section 3.11(a)...............................................................................................6.13
(b)...............................................................................................6.13
Section 3.12(a)......................................................................................7.01, 7.02(a)
(b)............................................................................................7.02(b)
(c)...............................................................................................7.03
Section 3.13(a)...............................................................................................7.03
(b)...............................................................................................7.03
(c)...............................................................................................7.03
(d)...............................................................................................7.03
Section 3.14(a)........................................................................................7.04, 10.05
(b).....................................................................................Not Applicable
(c) (1)...........................................................................................1.02
(c) (2)...........................................................................................1.02
(c) (3).................................................................................Not Applicable
(d).....................................................................................Not Applicable
(e)...............................................................................................1.02
(f).....................................................................................Not Applicable
Section 3.15(a)...............................................................................................6.01
(b)...............................................................................................6.02
(c)...............................................................................................6.01
(d)...............................................................................................6.01
(e)...............................................................................................5.14
Section 3.16(a)...............................................................................................1.01
(a) (1) (A).......................................................................................5.12
(a) (1) (B).......................................................................................5.13
(a) (2).................................................................................Not Applicable
(b)...............................................................................................5.08
Section 3.17(a) (1)...........................................................................................5.03
(a) (2)...........................................................................................5.04
(b)..............................................................................................10.03
Section 3.18(a)...............................................................................................1.07
(c)...............................................................................................1.07
- ------------------------
*This table shall not, for any purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions....................................................................................1
Section 1.02 Compliance Certificates and Opinions...........................................................8
Section 1.03 Form of Documents Delivered to Trustee.........................................................9
Section 1.04 Acts of Holders; Record Dates..................................................................9
Section 1.05 Notices, Etc., to Trustee and Company.........................................................11
Section 1.06 Notice to Holders; Waiver.....................................................................11
Section 1.07 Conflict with Trust Indenture Act.............................................................12
Section 1.08 Effect of Headings and Table of Contents......................................................12
Section 1.09 Successors and Assigns........................................................................12
Section 1.10 Separability Clause...........................................................................12
Section 1.11 Benefits of Indenture.........................................................................12
Section 1.12 Governing Law.................................................................................12
Section 1.13 Legal Holidays................................................................................12
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities...........................................................................13
Section 2.02 Form of Trustee's Certificate of Authentication...............................................13
Section 2.03 Securities in Global Form.....................................................................14
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series..........................................................14
Section 3.02 Denominations.................................................................................16
Section 3.03 Execution, Authentication, Delivery and Dating................................................17
Section 3.04 Temporary Securities..........................................................................18
Section 3.05 Registration, Registration of Transfer and Exchange and Book-Entry Securities.................19
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities..............................................21
Section 3.07 Payment of Interest; Interest Rights Preserved................................................22
Section 3.08 Persons Deemed Owners.........................................................................23
Section 3.09 Cancellation..................................................................................23
Section 3.10 Computation of Interest.......................................................................24
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.......................................................24
Section 4.02 Application of Trust Money....................................................................25
<PAGE>
ARTICLE V.
REMEDIES
Section 5.01 Events of Default.............................................................................25
Section 5.02 Acceleration of Maturity; Rescission and Annulment............................................28
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee...............................30
Section 5.04 Trustee May File Proofs of Claim..............................................................30
Section 5.05 Trustee May Enforce Claims Without Possession of Securities...................................31
Section 5.06 Application of Money Collected................................................................31
Section 5.07 Limitation on Suits...........................................................................32
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest.....................32
Section 5.09 Restoration of Rights and Remedies............................................................33
Section 5.10 Rights and Remedies Cumulative................................................................33
Section 5.11 Delay or Omission Not Waiver..................................................................33
Section 5.12 Control by Holders............................................................................33
Section 5.13 Waiver of Defaults............................................................................34
Section 5.14 Undertaking for Costs.........................................................................34
Section 5.15 Waiver of Stay or Extension Laws..............................................................35
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities...........................................................35
Section 6.02 Notice of Defaults............................................................................36
Section 6.03 Certain Rights of Trustee.....................................................................36
Section 6.04 Not Responsible for Recitals or Issuance of Securities........................................38
Section 6.05 May Hold Securities...........................................................................38
Section 6.06 Money Held in Trust...........................................................................38
Section 6.07 Compensation and Reimbursement................................................................38
Section 6.08 Disqualification; Conflicting Interests.......................................................39
Section 6.09 Corporate Trustee Required; Eligibility.......................................................39
Section 6.10 Resignation and Removal; Appointment of Successor.............................................39
Section 6.11 Acceptance of Appointment by Successor........................................................41
Section 6.12 Merger, Conversion, Consolidation or Succession to Business...................................42
Section 6.13 Preferential Collection of Claims Against Company.............................................42
Section 6.14 Appointment of Authenticating Agent...........................................................42
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.....................................44
Section 7.02 Preservation of Information; Communications to Holders........................................44
Section 7.03 Reports by Trustee............................................................................45
Section 7.04 Reports by Company............................................................................45
Section 7.05 Holders' Meetings.............................................................................45
<PAGE>
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms..........................................48
Section 8.02 Successor Substituted.........................................................................48
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders............................................49
Section 9.02 Supplemental Indentures With Consent of Holders...............................................51
Section 9.03 Execution of Supplemental Indentures..........................................................52
Section 9.04 Effect of Supplemental Indentures.............................................................52
Section 9.05 Conformity with Trust Indenture Act...........................................................52
Section 9.06 Reference in Securities to Supplemental Indentures............................................52
Section 9.07 Notice of Supplemental Indentures.............................................................53
Section 9.08 Subordination Unimpaired......................................................................53
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest....................................................53
Section 10.02 Maintenance of Office or Agency...............................................................53
Section 10.03 Money for Securities Payments to Be Held in Trust.............................................54
Section 10.04 Corporate Existence...........................................................................55
Section 10.05 Statement by Officers as to Default...........................................................55
Section 10.06 Maintenance of Properties...........................................Error! Bookmark not defined.
Section 10.07 Payment of Taxes..............................................................................55
Section 10.08 Calculation of Original Issue Discount........................................................55
Section 10.09 Waiver of Certain Covenants...................................................................56
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article......................................................................56
Section 11.02 Election to Redeem; Notice to Trustee.........................................................56
Section 11.03 Selection by Trustee of Securities to Be Redeemed.............................................56
Section 11.04 Notice of Redemption..........................................................................57
Section 11.05 Deposit of Redemption Price...................................................................58
Section 11.06 Securities Payable on Redemption Date.........................................................58
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article......................................................................58
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with Securities...............................59
Section 12.03 Redemption of Securities for Mandatory Sinking Fund...........................................59
<PAGE>
ARTICLE XIII.
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 13.01 Applicability of Article......................................................................60
Section 13.02 Notice of Repayment Date......................................................................60
Section 13.03 Deposit of Repayment Price....................................................................60
Section 13.04 Securities Payable on Repayment Date..........................................................60
Section 13.05 Securities Repaid in Part.....................................................................61
ARTICLE XIV.
SUBORDINATION OF SECURITIES
Section 14.01 Securities Subordinate to Senior Indebtedness.................................................61
Section 14.02 Trustee and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee
May Require Further Evidence as to Ownership of Senior Indebtedness; Trustee Not
Fiduciary to Holders of Senior Indebtedness.................................................63
Section 14.03 Payment Permitted If No Default...............................................................64
Section 14.04 Trustee Not Charged with Knowledge of Prohibition.............................................64
Section 14.05 Trustee to Effectuate Subordination...........................................................65
Section 14.06 Rights of Trustee as Holder of Senior Indebtedness............................................65
Section 14.07 Article Applicable to Paying Agents...........................................................65
Section 14.08 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Indebtedness.........................................................................66
ARTICLE XV.
CONVERSION OF SECURITIES
Section 15.01 General.......................................................................................66
Section 15.02 Right to Convert..............................................................................66
Section 15.03 Manner of Exercise of Conversion Privilege; Delivery of Common Stock; No Adjustment for
Interest or Dividends.......................................................................67
Section 15.04 Cash Payments in Lieu of Fractional Shares....................................................68
Section 15.05 Conversion Price Adjustments; Effect of Reclassification, Mergers, Consolidations and
Sales of Assets.............................................................................68
Section 15.06 Taxes on Shares Issued........................................................................72
Section 15.07 Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common
Stock.......................................................................................73
Section 15.08 Responsibility of Trustee.....................................................................73
Section 15.09 Covenant to Reserve Shares....................................................................73
Section 15.10 Other Conversions.............................................................................73
<PAGE>
ARTICLE XVI.
DEFEASANCE AND COVENANT DEFEASANCE
Section 16.01 Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance........74
Section 16.02 Defeasance and Discharge......................................................................74
Section 16.03 Covenant Defeasance...........................................................................74
Section 16.04 Conditions to Defeasance or Covenant Defeasance...............................................75
Section 16.05 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions..................................................................................77
Section 16.06 Reinstatement.................................................................................77
ARTICLE XVII.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 17.01 Immunity of Incorporators, Stockholders, Officers and Directors...............................78
</TABLE>
<PAGE>
INDENTURE, dated as of ____________, 2000, between U.S. WIRELESS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
2303 Camino Ramon, Suite 200, San Ramon, California 94583, and _____________ a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, 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, except as otherwise
herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such
computation; and
<PAGE>
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article VI, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day therein.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board or any director or directors
and/or officer or officers of the Company to whom that board or committee shall
have duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Conversion Price" means with respect to any series of Securities which
are convertible into Common Stock or Preferred Stock, the price per share of
Common Stock or Preferred Stock, as the case may be, at which the Securities of
such series are so convertible as set forth in the Board Resolution with respect
to such series (or in any supplemental indenture entered into pursuant to
Section 9.01(9) with respect to such series), as the same may be adjusted from
time to time in accordance with Section 15.05 (or such supplemental indenture
pursuant to Section 15.01).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at
___________________.
"Corporation" includes corporations, associations, companies and
business trusts.
"Debt" means (a) all indebtedness of the Company (including Senior Debt
Securities and Securities issued hereunder) whether heretofore or hereafter
incurred (i) for borrowed money or (ii) in connection with the acquisition by
the Company or a Subsidiary of assets other than in the ordinary course of
business, for the payment of which the Company is liable directly or indirectly
by guarantee, letter of credit, obligation to purchase or acquire or otherwise,
or the payment of which is secured by a lien, charge or encumbrance on assets
acquired by the Company, (b) amendments, modifications, renewals, extensions and
deferrals of any such indebtedness and (c) any indebtedness issued in exchange
for any such indebtedness.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, a clearing agency
registered under the Securities Exchange Act of 1934, as amended, or any
successor thereto, which shall in either case be designated by the Company
pursuant to Section 3.01 or 3.05 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder.
"Event of Default" has the meaning specified in Section 5.01.
"generally accepted accounting principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date hereof.
"Global Security or Securities" means one or more fully registered
Securities in global form evidencing all or a part of a series of Securities
issued to the Depositary for such series or its nominee or registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.01.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"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 by repayment or otherwise.
<PAGE>
"Officers' Certificate" means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
the President or a Vice President, and the other signature being that of the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) 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; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(iv) Securities with respect to which the Company has effected defeasance
as provided in Article XVI;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, and (b) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
<PAGE>
"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.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any stock of any class of the Company which has
a preference over Common Stock in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not mandatorily redeemable or repayable, or
redeemable or repayable at the option of the Holder, otherwise than in shares of
Common Stock or Preferred Stock of another class or series or with the proceeds
of the sale of Common Stock or Preferred Stock.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of __________, __________ and
__________ and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Treasury Reference Dealer by 5:00 p.m. on the
third Business Day preceding such redemption date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee customarily performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Debt Securities" means any debt securities issued by the
Company pursuant to the Senior Indenture, dated the date hereof, by and between
the Company and the Trustee ("Senior Indenture").
"Senior Indebtedness" means the principal of, and premium, if any, and
any interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) and
all other monetary obligations of every kind or nature due on or in connection
with (a) all indebtedness of the Company (including Senior Debt Securities)
whether heretofore or hereafter incurred (i) for borrowed money or (ii) in
connection with the acquisition by the Company or a Subsidiary of the Company of
assets other than in the ordinary course of business, for the payment of which
the Company is liable directly or indirectly by guarantee, letter of credit,
obligation to purchase or acquire or otherwise, or the payment of which is
secured by a lien, charge or encumbrance on assets acquired by the Company, (b)
amendments, modifications, renewals, extensions and deferrals of any such
indebtedness, and (c) any indebtedness issued in exchange for any such
indebtedness; provided, however, that the following will not constitute Senior
Indebtedness with respect to Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was issued, it is
expressly provided that such Debt is subordinate in right of payment to all Debt
of the Company not expressly subordinated to such Debt; and (2) any Debt of the
Company in respect of Securities and any Debt which by its terms refers
explicitly to the Securities and states that such Debt shall not be senior in
right of payment.
<PAGE>
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or such installment of
principal, premium, if any, or interest on such Security is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"United States" means the United States of America.
"U.S. Government Obligations" has the meaning specified in Section 16.04.
"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."
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other that the certificate
provided for in Section 10.05) shall include:
(1) A statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
<PAGE>
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, 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 are based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders; Record Dates.
(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 an 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 (subject to Section 6.01) 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 Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or , in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(f) 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. Any notice given or action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
<PAGE>
(g) Without limiting the generality of the foregoing, unless otherwise specified
pursuant to Section 3.01 or pursuant to one or more indentures supplemental
hereto, a Holder, including a Depositary that is the Holder of a Global
Security, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is the Holder of a Global Security may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(h) The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any Global Security held by a
Depositary entitled under the procedures of such Depositary to make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument, Attention: Secretary, or at any other address previously furnished
in writing to the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice to a Holder which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to give
notice of any event to Holders by mail when such notice is required to be given
pursuant to any provision of this Indenture, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 3.10 through 3.17, inclusive, of the Trust Indenture
Act through the operation of Section 3.18(c) thereof, such imposed duties 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 shall be
deemed to be so excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
<PAGE>
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture; provided that this Section 1.11 shall not limit the rights of any
Holder of a Global Security to give any notice or take any action, or appoint
any agents, with regard to any part or different parts of the principal amount
of such Global Security pursuant to Section 1.04.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of said state without
regard to the conflicts of laws and rules of said state.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date or Stated Maturity, as the case may be.
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities.
The Securities of each series shall be in such form or forms (including
global 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 law or with any rules made pursuant thereto or the
rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
such Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner permitted by the rules of any securities
exchange upon which the Securities may be listed and (with respect to Global
Securities of any Series) the rules of the Depositary, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 2.02 Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
- ---------------------------,
as Trustee
By:
Authorized Officer
Section 2.03 Securities in Global Form.
If any Security of a series is issuable in global form, such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and also may provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee and in
such manner as shall be specified in such Security. Any instructions by the
Company with respect to a Security in global form, after its initial issuance,
shall be in writing but need not comply with Section 1.02.
<PAGE>
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of the
authentication and delivery or Maturity of the Securities of such series. There
shall be established in or pursuant to a Board Resolution, and, to the extent
not set forth therein, set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other series of Securities);
(2) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities will be issued;
(3) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of that series pursuant to Section
3.04, 305, 306, 906, 1107, 1305 or 1503);
(4) the date or dates on which the principal and premium, if any, of the
Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the method of
determination thereof, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date or, if the
principal amount payable at the Stated Maturity of any of the Securities will
not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which will be deemed to be such principal amount as of any such date
for any purpose, including the principal amount thereof which will be due and
payable upon any Maturity other than the Stated Maturity or which will be deemed
to be Outstanding as of any such date (or, in any such case, the manner in which
such deemed principal amount is to be determined);
(6) if other than the Corporate Trust Office, the place or places where the
principal of (and premium, if any) and interest on Securities of the series
shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any mandatory sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(11) if the Securities of the series shall be issued in whole or in part in
the form of a Global Security or Securities, the terms and conditions upon which
such Global Security may be exchanged in whole or in part for other individual
securities and the Depositary for such Global Security or Securities;
(12) any addition to or change in the Events of Default which applies to
any Securities of the series;
(13) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series;
(14) if the Securities of the series are convertible into Common Stock or
Preferred Stock, the Conversion Price therefor, the period during which such
Securities are convertible and any terms and conditions for the conversion of
such Securities which differ from Article XV;
(15) the nature and terms of the security for any secured Securities;
<PAGE>
(16) the form and terms of any guarantee of the Securities;
(17) the application, if any, of Section 16.02 or 16.03 of the Securities
of the series and any provisions in modification of, in addition to or in lieu
of any of the provisions of Article XVI;
(18) the listing of the Securities on any securities exchange or the
inclusion in any other market or quotation or trading system;
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture);
(20) if the principal amount payable at the stated maturity of any of such
Securities will not be determinable as of any one or more dates prior to the
stated maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof which
will be due and payable upon any maturity other than the stated maturity or
which will be deemed to be outstanding as of any such date (or, in any such
case, the manner in which such deemed principal amount is to be determined); and
(21) any trustee or fiscal or authenticating or payment agent, issuing and
paying agent, transfer agent or registrar or any other person or entity to act
in connection with such Securities for or on behalf of the holders thereof or
the Company or an affiliate.
The Securities shall be subordinate and junior in right of payment to
Senior Indebtedness of the Company as provided in Article XIV.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate, to the
extent applicable, or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuance of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or
the Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable in registered form with
or without coupons in such denominations as shall be specified as contemplated
by Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
<PAGE>
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities upon Company Order. If all the Securities of any one
series are not to be originally issued at one time and if a Board Resolution
relating to such Securities shall so permit, such Company Order may set forth
procedures (acceptable to the Trustee) for the issuance and authentication of
such Securities.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, 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 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01,
that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01,
that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution or Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to this Section 3.03 or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then 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 Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series having the same terms issued and not yet
canceled, (ii) shall be registered in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security in lieu of which it is issued.
<PAGE>
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
Section 3.05 Registration, Registration of Transfer and Exchange and Book-Entry
Securities.
The Company shall cause to be kept at one of its offices or agencies
maintained pursuant to Section 10.02 a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of exchanges and transfers of Securities. The
Person responsible for the maintenance of the Security Register is referred to
herein as the "Security Registrar." The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities and transfers of
Securities as herein provided. The exchange of and the transfer of Securities
also may be registered at the office of Trustee.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series (except
Global Securities) of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06, 11.06, 13.05 or 15.03 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.02 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section 3.05, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
a series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary 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 condition, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series, in exchange for such Global Security or Securities.
<PAGE>
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series in definitive registered form on such terms as are
acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination
as requested by such Person, in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount
of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to
Clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
canceled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 3.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall not be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. The Trustee shall,
at Company expense, deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with
such other security or indemnity as may be reasonably required by the Trustee to
save it harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security, subject to satisfaction of
the foregoing conditions.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. The Company and the Trustee understand that interest on any
Global Security will be disbursed or credited by the Depositary to the Persons
having ownership thereof pursuant to a book entry or other system maintained by
the Depositary.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (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 Clause (2) below:
<PAGE>
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 3.09 Cancellation.
Unless otherwise specified pursuant to Section 3.01(7) for Securities
of any series all Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any mandatory sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee, except that if a Global Security is so surrendered, the Company shall
execute and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security or
Securities in a denomination equal to and in exchange for the portion of the
Global Security so surrendered not to be paid, redeemed, repaid or registered
for transfer or exchange or for credit. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of in accordance with its customary procedures and
a certificate of disposition shall be delivered to the Company, unless, by a
Company Order, the Company shall direct the canceled Securities be returned to
it.
<PAGE>
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease to be of further
effect with respect to the Securities of a particular series (except as to any
surviving rights to convert Securities into Common Stock, or rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when:
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.06 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or
(i) will become due and payable at their Stated Maturity within
one year, or
(ii) are to be called for redemption within one year, under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds
in trust for the purpose sums sufficient to pay and
discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest 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; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such
Securities; 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 with respect to
the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of a particular series, the obligations of the Company
to the Trustee under Section 6.07, the obligations, if any, of the Trustee to
any Authenticating Agent under Section 6.14 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 4.02 and the last
paragraph of Section 10.03, in each case with respect to such Securities, shall
survive.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements of the Company under this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.07, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive with respect to such
series of Securities.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All money deposited with the Trustee pursuant to Section 4.01 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Company upon Company Request.
<PAGE>
ARTICLE V.
REMEDIES
Section 5.01 Events of Default.
Unless otherwise provided in a supplemental indenture hereto, "Event of
Default," wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or Article XIV or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to pay principal of (or premium, if any, on) any Security of
that series at its Maturity, upon redemption or otherwise; or
(2) failure to pay any interest upon any Security of that series when due,
and the default continues for 30 days; or
(3) default in the deposit of any mandatory sinking fund payment, when and
as due by the terms of the Securities of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in a Security of that series or in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has been expressly included in
this Indenture solely for the benefit of series of Securities other that that
series), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with respect
to Senior Debt Securities or Securities of any series other than that series) or
under any mortgage, indenture (including this Indenture and the Senior
Indenture) or instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the Company or
any Subsidiary (each such bond, debenture, note, evidence of indebtedness,
mortgage, indenture or instrument being referred to as a "Loan Document"),
whether such indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay the principal of such indebtedness at
final maturity after the expiration of any applicable grace period with respect
thereto or shall have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged or such
acceleration having been rescinded or annulled within a period of 15 days after
there shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder, if the aggregate outstanding
principal amount of indebtedness under the Loan Document with respect to which
such default or acceleration has occurred exceeds $20 million; provided,
however, that if such default under such Loan Document shall be cured by the
Company or be waived by the holders of such indebtedness or if such acceleration
shall be rescinded or annulled, in each case as may be permitted by such Loan
Document, then the Event of Default hereunder by reason of such default shall be
deemed likewise to have been thereupon cured or waived; and provided, further,
that, subject to the provisions of Sections 6.01 and 6.02, the Trustee shall not
be deemed to have knowledge of such default or acceleration unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such default
or acceleration or (B) the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary in an
involuntary case or proceeding under the entry by any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Subsidiary
under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company or any Subsidiary of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company or any Subsidiary in an
involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or any Subsidiary in furtherance
of any such action.
<PAGE>
Upon receipt by the Trustee of any proposed Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such proposed Notice of Default, which record date shall be at the close of
business on the day the Trustee receives such proposed Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, or their proxies, shall have joined in such proposed Notice of
Default prior to the day which is 90 days after such record date, such proposed
Notice of Default shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving (i) after expiration of such 90-day
period, a new proposed Notice of Default identical to a proposed Notice of
Default which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional proposed Notice
of Default with respect to any new or different fact or circumstance permitting
the giving of a proposed Notice of Default with respect to Securities of such
series, in either of which events a new record date shall be established
pursuant to the provisions of this Section 5.01. Any such proposed Notice of
Default shall be considered a Notice of Default hereunder at such time, if any,
that Holders of at least 25% in principal amount of the Outstanding Securities
shall have joined in such proposed Notice of Default by giving timely notice to
the Trustee hereunder.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in Section 5.01(5) or (6)), at the time
Outstanding occurs and is continuing, then in every such case, the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of said amounts,
all obligations of the Company in respect of payment of principal of the
Securities of such series shall terminate. Notwithstanding the foregoing, if an
Event of Default specified in Section 5.01(6) or (7) hereof occurs with respect
to the Company, all Outstanding Securities shall become immediately due and
payable without further action or notice.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the 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 5.13.
<PAGE>
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, (i) after expiration of such 90-day period, a new written
notice of declaration of acceleration or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, or (ii) during any such
90-day period, an additional written notice of declaration of acceleration with
respect to Securities of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to any
other Event of Default with respect to Securities of such series, in either of
which events a new record date shall be established pursuant to the provisions
of this Section 5.02.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days,
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any mandatory sinking
fund payment when it becomes due pursuant to the terms of the securities of any
series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may, but shall
not be obligated to, institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
<PAGE>
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to file and prove a
claim for the whole amount of principal, premium and interest owing and unpaid
in respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article of any
series shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of any series and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
<PAGE>
FIRST: To the payment of all amounts due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities of such series in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company or to whomsoever may be lawfully
entitled to receive the same as a court of competent jurisdiction may direct.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or of the Holders of Outstanding Securities of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption or repayment at the
option of the Holder, on the Redemption Date or the Repayment Date, as the case
may be) and (if the terms of such Security so provide) to have such Security
converted into Common Stock pursuant to Article XV and to institute suit for the
enforcement of any such payment or conversion, and such rights shall not be
impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
<PAGE>
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12 Control by Holders.
The Holders of at least a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Global Security,
a record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be determined in accordance with Section 1.04(e). The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless Holders of at least a majority in
principal amount of the outstanding Securities of such series, or their proxies,
shall have been joined in such direction prior to the day which is 90 days after
such record date, such direction shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction which
has been canceled pursuant to the provisions to the preceding sentence or (ii)
during any such 90-day period a new direction contrary to or different from such
direction, in either of which events a new record date shall be established
pursuant to the provisions of this Section 5.12.
Section 5.13 Waiver of Defaults.
By Act delivered to the Company and the Trustee, the Holders of not
less than a majority in principal amount of the Outstanding Securities of any
affected series may on behalf of the Holders of all the Securities of such
series waive any existing Event of Default hereunder with respect to such series
and its consequences (including an acceleration and its consequences, including
any related payment default that resulted from such acceleration), except an
Event of Default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of
any mandatory sinking fund installment with respect to the
Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series
affected.
<PAGE>
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series, or by any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest on any
Security on or after the Stated Maturity expressed in such Security (or, in the
case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be, and (if the terms of such
Security so provide) to have such Security converted into Common Stock pursuant
to Article XV).
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision of this Indenture are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
<PAGE>
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series 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; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal, premium or interest on
any Security of such series or in the payment of any mandatory sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee of the board of directors and/or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities of such series; and provided,
further, that in the case of any default of the character specified in Section
5.01(4) with respect to the Securities of such series no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
<PAGE>
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be required to take notice or be deemed to have notice
of any default hereunder (except failure by the Company to pay principal of or
interest on any series of Securities so long as the Trustee is also acting as
Paying Agent for such series of Securities) unless the Trustee shall be
specifically notified in writing of such default by the Company by the Holders
of at least 10% in aggregate principal amount of all Outstanding Securities, and
all such notices or other instruments required by this Indenture to be delivered
to the Trustee must, in order to be effective, be delivered at the principal
Corporate Trust Office of the Trustee, and in the absence of such notice the
Trustee may conclusively assume there is no default except as aforesaid.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof. The Trustee shall not be
deemed to have knowledge of the identity of any Subsidiary unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge thereof or (B)
the Trustee shall have received written notice thereof from the Company or any
Holder.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
<PAGE>
Section 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Section 6.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 3.10 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. To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed
to have a conflicting interest with respect to the Securities of any series by
virtue of being Trustee with respect to the Securities of any particular series
of Securities except as may be otherwise provided by the terms of the Securities
of that series.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 6.11 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.
<PAGE>
(c) The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 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 6.09 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any or all Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to any or
all Securities and the appointment of a successor Trustee or Trustees with
respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of that or those 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 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.06. Each notice of
appointment shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
<PAGE>
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 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. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
<PAGE>
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 3.11 of the Trust Indenture Act regarding the collection
of such claims against the Company (or any such other obligor). A Trustee that
has resigned or been removed shall be subject to and comply with said Section
3.11 to the extent required thereby.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities (which may be an Affiliate of the Company)
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon registration of transfer or partial redemption or
repayment thereof or pursuant to Section 3.06, 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.
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 shall at all times
be a corporation organized and doing business and in good standing under the
laws of the United States of America, any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of no less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any
time by giving written notice thereof 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 for such series by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee of such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment thereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request
of the Company, the Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, pursuant to the
provisions of Section 6.07.
<PAGE>
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series described therein referred
to in the within-mentioned Indenture.
- --------------------------------------,
as Trustee
,
as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular
Record Date relating to that series, on June 30 and December
31), a list, in such form as such Trustee may reasonably
require, of the names and addresses of the Holders of that
series as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is
Security Registrar with respect to Securities of a particular
series no such list shall be required with respect to the
Securities of such series.
Section 7.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
Section 7.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year 1999, the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act if and to the extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
<PAGE>
Section 7.04 Reports by Company.
(a) The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports to the Trustee is for
informational purposes only and the Trustee's receipt of such reports shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(b) Commencing one year from the date hereof, the Company shall furnish to the
Trustee annually the notice required by Section ____ hereof (if required) and a
statement as to the performance by the Company of its obligations hereunder and
as to any Event of Default.
Section 7.05 Holders' Meetings.
(a) A meeting of Holders of any or all series may be called at any time and from
time to time pursuant to the provisions of this Section 7.05 for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for such series, or
to give any directions to the Trustee for such series, or to consent to the
waiving of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions of
Article V;
(2) to remove the Trustee for such series and appoint a successor Trustee
pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or supplemental indentures
hereto pursuant to the provisions of Section 9.02;
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Outstanding
Securities of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time call a meeting of Holders of such
series to take any action specified in paragraph (a) of this Section 7.05, to be
held at such time or times and at such place or places as the Trustee for such
series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of such
series in the manner and to the extent provided in Section 1.05. Such notice
shall be given not less than 20 days nor more than 90 days prior to the date
fixed for the meeting.
(c) In case at any time the company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized by giving notice thereof as provided in the preceding paragraph.
<PAGE>
(d) to be entitled to vote at any meeting of Holders a Person shall be (a) a
Holder of a Security of the series with respect to which such meeting is being
held or (b) a Person appointed by an instrument in writing as agent or proxy by
such Holder. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee for the series with respect
to which such meeting is being held and its counsel and any representatives of
the Company and its counsel.
(e) Notwithstanding any other provisions of this Indenture, the Trustee for any
series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in paragraph (c) of this
Section 7.05, in which case the Company or the Holders calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.01) of Securities of such series held or represented
by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Securities of such
series held by him or instruments in writing duly designating him as the person
to vote on behalf of Holders of Debt Securities of such series. Any meeting of
Holders with respect to which a meeting was duly called pursuant to the
provisions of paragraph (b) or (c) of this Section 7.05 may be adjourned from
time to time by a majority of such Holders present and the meeting may be held
as so adjourned without further notice.
(f) Voting. The vote upon any resolution submitted to any meeting of Holders
with respect to which such meeting is being held shall be by written ballots on
which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Securities held
or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was transmitted as provided in paragraph (b) of this Section 7.05. The
record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
(g) Nothing contained in this Section 7.05 shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to any Holder under any of the provisions of this Indenture or of the
Securities of any series.
<PAGE>
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not consolidate with or merge with or into any other
Person or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its property or assets to any Person unless:
(1) in case the Company shall consolidate with or merge into another Person
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its property or assets to any Person in one or more related
, the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company be either the Company or a corporation,
shall be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, all obligations hereunder, including the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately prior to and after giving effect to such transaction, and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Notwithstanding the foregoing, any Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company.
Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the property or assets of the
Company in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
property or assets is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities. In the case of a lease, the predecessor Person shall not be released
from its obligations to pay the principal of, premium, if any, and interest on
the Securities. All Securities issued by the successor Person shall in all
respects have the same legal priority as the Securities theretofore or
thereafter authenticated, issued and delivered in accordance with the terms of
this Indenture.
<PAGE>
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may amend
the Securities of a series or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such Events of Default are to be for
the benefit of less than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture,
including, without limitation, and notwithstanding any other clause in this
Section 9.01, Sections 1.01 and 5.01, and Articles X and XV, in respect of one
or more series of Securities, provided that any such addition, change or
elimination (i) shall neither (A)apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to Sections 8.01 or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to add to or change any provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(10) to effectuate the provisions of Section 15.05(b); or
(11) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge and
covenant defeasance with respect to any series of Securities pursuant to
Sections 16.02 or 16.03; provided, however, that any such action shall not
adversely affect the interests of the Holders of Securities of such series or
any other series of Securities in any material respect; or
<PAGE>
(12) to add or change or eliminate any provisions of this Indenture as
shall be necessary or desirable in accordance with any amendments to the Trust
Indenture Act or to comply with any requirements of the Commission in connection
with the qualification of this indenture under the Trust Indenture Act; or
(13) (A) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or (B) to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (13)(B)
shall not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(14) to change any place or places where (1) the principal of and premium,
if any, and interest, if any, on all or any series of Securities shall be
payable, (2) all or any series of Securities may be surrendered for registration
or transfer, (3) all or any series of Securities may be surrendered for
exchange, and 4) notices and demands to or upon the Company in respect of all or
any series of Securities and this Indenture may be served; or
(15) to waive a default in the payment of the principal of, or interest on,
any Security, except as otherwise provided herein.
Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of, premium, if any, 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, the payment of any mandatory sinking fund or
analogous obligation, change the method of determination of interest thereon, or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of Payment where,
or the coin or currency in which, any Security or any premium or the interest
thereon is payable or impair the right of any Holders of Securities of a Series
entitled to the conversion rights set forth in Article XV to receive securities
upon the exercise of such conversion rights, or impair the right to institute
suit for the enforcement of any such payment or delivery of Common Stock or
Preferred Stock for Securities converted pursuant to Article XV on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as the
case may be, or in the case of such conversion, on or after the date of
conversion), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) make any change in the provisions concerning waivers of Events of
Default by Holders or the rights of Holders to recover the principal of,
premium, if any, or interest on, any Security or waive an Event of Default in
the payment of the principal of, or interest on, any Security, except as
otherwise provided for herein, or
(4) modify any of the provisions of this Section, Section 5.13 or Section
10.08, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 10.08, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.01(8).
<PAGE>
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 9.07 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture, the Company shall transmit, as provided herein,
to all Holders of any series of the Debt Securities affected thereby, a notice
setting forth in general terms the substance of such supplemental indenture.
Section 9.08 Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall
directly or indirectly modify the provisions of Article XIV in any manner which
might alter the subordination of the Securities.
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 10.02 Maintenance of Office or Agency.
<PAGE>
The Company will maintain in each Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, conversion or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company terminates the appointment of a Paying Agent
or Security Registrar or conversion agent or otherwise shall fail to maintain
any such required office or agency, the Company shall use its reasonable best
efforts to appoint a successor Paying Agent or Security Registrar or conversion
agent reasonably acceptable to the Trustee. If the Company fails to maintain a
Paying Agent or Security Registrar or conversion agent, the Trustee will act as
such, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest 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 (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee 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, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee in writing of
its action or failure so to act.
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
(and 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 written notice of any default by the Company
(or any other obligor upon the Securities of that series) in
the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
<PAGE>
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, 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 10.04 Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if in the
judgment of the Company it shall be necessary, advisable or in the interest of
the Company to discontinue the same.
Section 10.05 Statement by Officers as to Default.
Pursuant to Section 3.14(a) of the Trust Indenture Act, the Company
will deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company ending after the date hereof, a certificate signed by the principal
executive, financial or accounting officer of the Company, stating whether or
not to the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions, covenants and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided, hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 10.06 Payment of Taxes.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary.
<PAGE>
Section 10.07 Calculation of Original Issue Discount.
If any Original Issue Discount Securities are issued hereunder, the
Company shall file with the Trustee promptly following the end of each calendar
year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on each series of
outstanding Original Issue Discount Securities as of the end of such year.
Section 10.08 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 8.01(3) and in Section 10.04
and Sections 10.06 to 10.08, inclusive, with respect to the Securities of any
series if, before the time for such compliance, the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated in Section 3.01 for Securities of any
series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, 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 prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities 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, in a manner
which the Trustee deems fair and appropriate, which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If the
Company shall so specify and identify the appropriate Securities, Securities
owned of record and beneficially by the Company or any Subsidiary shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
<PAGE>
Section 11.04 Notice of Redemption.
Notice of redemption shall, unless otherwise specified by the terms of
the Securities to be redeemed, be given not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, in
accordance with Section 1.06.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by the
Company pursuant to provisions contained in this Indenture or
the terms of the Securities of such series or a supplemental
indenture establishing such series, if such be the case,
together with a brief statement of facts permitting such
redemption,
(4) if less than all the Outstanding Securities of any series are
to be redeemed (unless all the Securities of such series of a
specified tenor are to be redeemed), the identification (and,
in the case of partial redemption of any Securities, the
principal amounts) of the particular Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, which shall
be the office or agency of the Company in each Place of
Payment, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
<PAGE>
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security. Section 11.07. Securities Redeemed in Part. Any Security which is
to be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series to the
Trustee for cancellation (other than any previously called for redemption) and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company or the Holder, if applicable, pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series or may
apply Securities of such series which have been previously cancelled or
converted; 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 such mandatory sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Mandatory Sinking Fund.
Not less than 60 days prior to each mandatory 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 mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities or applying previously cancelled Securities of that series pursuant
to Section 12.02 and the basis for such credit and will also deliver to the
Trustee any Securities to be so delivered which have not theretofore been
delivered to the Trustee. Not less than 30 days before each such mandatory
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such mandatory sinking fund payment date in the manner specified
in Section 11.03 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
11.03. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.04, 11.05
and 11.06.
<PAGE>
ARTICLE XIII.
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Securities of any series that are repayable before their Stated
Maturity at the option of the Holders shall be repaid in accordance with their
terms and (except as otherwise specified as contemplated by Section 3.01 for
Securities of any series) in accordance with this Article.
Section 13.02 Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of such series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repayment Date, to the Trustee and to each Holder of Securities of such series
in accordance with Sections 1.05 and 1.06, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are to be surrendered for
payment of the Repayment Price, which shall be the office or agency of the
Company in each Place of Payment, and the date by which Securities must be so
surrendered in order to be repaid;
(4) a description of the procedure which a Holder must follow to exercise a
repayment right; and
(5) that exercise of the option to elect repayment is irrevocable.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repayment right.
Section 13.03 Deposit of Repayment Price.
On or prior to any Repayment Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Repayment Price of and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities of
such series which are to be repaid on that date.
Section 13.04 Securities Payable on Repayment Date.
The form of option to elect repayment having been delivered as
specified in the form of Security for such series as provided in Section 2.01,
the Securities so to be repaid shall, on the Repayment Date, become due and
payable at the Repayment Price applicable thereto, and from and after such date
(unless the Company shall default in the payment of the Repayment Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for repayment in accordance with said notice, such Security
shall be paid by the Company at the Repayment Price, together with accrued
interest to the Repayment Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest whose Stated
Maturity is on or prior to such Repayment Date will 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 Date according to their terms and
the provisions of Section 3.07.
If any Security to be repaid shall not be so paid upon surrender
thereof for repayment, the principal shall, until paid, bear interest from the
Repayment Date at the rate prescribed in the Security.
<PAGE>
Section 13.05 Securities Repaid in Part.
Any Security which by its terms may be repaid in part at the option of
the Holder and which is to be repaid only in part shall be surrendered at any
office or agency of the Company designated for that purpose pursuant to Section
10.02 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unrepaid portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so issued
shall be a new Global Security.
ARTICLE XIV.
SUBORDINATION OF SECURITIES
Section 14.01 Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or the
Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Securities of each series is subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Indebtedness or extension or renewal of the Senior Indebtedness.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Indebtedness when
the same becomes due and payable, whether at maturity or at a date fixed for
repayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of Senior Indebtedness or
any trustee therefor or representative thereof, unless and until such default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) shall
be made or agreed to be made on account of the principal of (or premium, if any)
or interest on any of the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the Company,
its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding up of
the Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
<PAGE>
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereof accruing after the commencement of any such proceedings) shall
have been paid in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of (and premium, if any) and interest on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), or any security
shall be received by the Trustee or any Holder in contravention of any of the
terms hereof, such payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness at the time outstanding in accordance
with the priorities then existing among such holders for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably authorized to
endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders of
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Securities or
prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a Default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full, and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The provisions of this Section 14.01 shall not impair any right,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
<PAGE>
Section 14.02 Trustee and Holders of Securities May Rely on Certificate of
Liquidating Agent; Trustee May Require Further Evidence as to Ownership of
Senior Indebtedness; Trustee Not Fiduciary to Holders of Senior Indebtedness.
Upon any payment or distribution of assets of the Company referred to
in this Article XIV, the Trustee and the Holders shall be entitled to rely upon
an order or decree made by any court of competent jurisdiction in which such
dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XIV. In the absence of any such bankruptcy trustee, receiver, assignee or other
Person, the Trustee shall be entitled to rely upon a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee or
representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payments or distributions pursuant to this
Article XIV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article XIV, 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. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and, subject to the provisions of Section 6.01,
the Trustee shall not be liable to any holder of Senior Indebtedness if it shall
in good faith pay over or deliver to Holders of Securities, the Company or any
other Person moneys or assets to which any holder of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
Section 14.03 Payment Permitted If No Default.
Nothing contained in this Article XIV or elsewhere in this Indenture,
or in any of the Securities, shall prevent (a) the Company at any time, except
during the pendency of any dissolution, winding up, liquidation or
reorganization proceedings referred to in, or under the conditions described in,
Section 14.01, from making payments of the principal of (or premium, if any) or
interest on the Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of the principal of
(or premium, if any) or interest on the Securities if the Trustee or such Paying
Agent, as the case may be, did not have the written notice provided for in
Section 14.04 by the times referred to therein of any event prohibiting the
making of such deposit or exchange, and the Trustee or any Paying Agent shall
not be affected by any notice to the contrary received by it on or after such
times.
<PAGE>
Section 14.04 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article XIV or elsewhere in this Indenture contained
to the contrary notwithstanding, the Trustee shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of money to or by the Trustee and shall be entitled conclusively to
assume that no such facts exist and that no event specified in Section 14.01 has
happened, until the Trustee shall have received an Officers' Certificate to that
effect or notice in writing to that effect signed by or on behalf of the holder
or holders, or their representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any
trustee under any indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if prior to the third Business Day
preceding the date upon which by the terms hereof any money becomes payable
(including, without limitation, the payment of either the principal of or
interest on any Security), or in the event of the execution of an instrument
pursuant to Section 4.01 acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day preceding the date of such
execution, the Trustee or any Paying Agent shall not have received with respect
to such money the Officers' Certificate or notice provided for in this Section
14.04, then, anything herein contained to the contrary notwithstanding, the
Trustee or such Paying Agent shall have full power and authority to receive such
money and apply the same to the purpose for which they were received and shall
not be affected by the notice to the contrary which may be received by it on or
after such date. The Company shall give prompt written notice to the Trustee and
to the Paying Agent of any facts which would prohibit the payment of money to or
by the Trustee or any Paying Agent.
Section 14.05 Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Indebtedness as provided in this Article and appoints the Trustee its
attorney-in-fact for any and all such purposes.
Section 14.06 Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness which may at the time be held by
it, to the same extent as any other holder of Senior Indebtedness; provided,
however, that nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder; and provided, further, that nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.07.
Section 14.07 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 shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 14.04 and 14.06 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
<PAGE>
Section 14.08 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or alter,
any such Senior Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness, including, without limitation,
the waiver of default thereunder, all without notice to or assent from the
Holders of the Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of the Securities under this Article.
ARTICLE XV.
CONVERSION OF SECURITIES
Section 15.01 General.
If so provided in the terms of the Securities of any series established
in accordance with Section 3.01, the principal amount of the Securities of such
series shall be convertible into shares of Common Stock in accordance with this
Article XV and the terms of such series of Securities if such terms differ from
this Article XV; provided, however, that if any of the terms by which any such
Security shall be convertible into Common Stock are set forth in a supplemental
indenture entered into with respect thereto pursuant to Section 9.01(9) hereof,
the terms of such supplemental indenture shall govern.
Section 15.02 Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Security that is convertible into Common Stock shall have the
right, at such Holder's option, at any time on or after the date of original
issue of such Security or such other date specified in the applicable Board
Resolution delivered pursuant to Section 3.01 and prior to the close of business
on the date set forth in such Board Resolution (or if such Security is called
for redemption, then in respect of such Security to and including but not after
the close of business on the date of redemption unless the Company shall default
in the payment due on such date) to convert the principal amount of any such
Security of any authorized denomination, or, in the case of any Security to be
converted of a denomination greater than the minimum denomination for Securities
of the applicable series, any portion of such principal which is an authorized
denomination or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock obtained by dividing the principal amount
of such Security or portion thereof surrendered for conversion by the Conversion
Price therefor by surrender of the Security so to be converted in whole or in
part in the manner provided in Section 15.03. Such conversion shall be effected
by the Company in accordance with the provisions of this Article and the terms
of the Securities, if such terms differ from this Article.
Section 15.03 Manner of Exercise of Conversion Privilege; Delivery of
Common Stock; No Adjustment for Interest or Dividends.
In order to effect a conversion, the holder of any Security to be
converted, in whole or in part, shall surrender such Security at the office or
agency maintained by the Company for such purpose, as provided in Section 10.02
and shall give written notice of conversion to the Company at such office or
agency that the Holder elects to convert such Security or the portion thereof
specified in said notice. The notice shall state the name or names (with
address), and taxpayer identification number, in which the certificate or
certificates for shares of Common Stock which shall be deliverable on such
conversion shall be registered, and shall be accompanied by payments in respect
of transfer taxes, if required pursuant to Section 15.06. Each Security
surrendered for conversion shall, unless the shares of Common Stock deliverable
on conversion are to be issued in the same name as the registration of such
Security, be duly endorsed by or be accompanied by instruments of transfer, in
form satisfactory to the Company, duly executed by the Holder or such Holder's
duly authorized attorney, and by any payment required pursuant to this Section
<PAGE>
15.03. As promptly as practicable after the surrender of such Security and
notice, as aforesaid, the Company shall deliver or cause to be delivered at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
deliverable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion as provided in Section 15.04. In case any Security of a denomination
greater than the minimum denomination for Securities of the applicable series
shall be surrendered for partial conversion, the Company shall execute and
register and the Trustee shall authenticate and deliver to or upon the written
order of the Company and the Holder of the Security so surrendered, without
charge to such Holder, a new Security or Securities of the same series in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Each conversion shall be deemed
to have been effected as of the date on which such Security shall have been
surrendered (accompanied by the funds, if any, required by the last paragraph of
this Section) and such notice received by the Company, as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be registrable upon such conversion shall become on
said date the Holder of record of the shares represented thereby, provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the person in whose name the
certificates are to be registered as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the Regular Record Date for any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(unless such Security or portion thereof being converted shall have been called
for redemption or submitted for repayment on a date during such period) be
accompanied by payment, in legal tender or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the applicable series of Securities. An
amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Security on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
Section 15.04 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares of Common Stock shall be delivered upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. Instead of any fraction of a share of Common Stock which would
otherwise be deliverable upon the conversion of any Security, the Company shall
pay to the Holder of such Security an amount in cash (computed to the nearest
cent, with one-half cent being rounded upward) equal to the same fraction of the
closing price (determined in the manner provided in Section 15.05(a)(v)) of the
Common Stock on the Trading Day (as defined in Section 15.05(a)(v)) next
preceding the date of conversion.
Section 15.05 Conversion Price Adjustments; Effect of Reclassification,
Mergers, Consolidations and Sales of Assets.
(a) The Conversion Price shall be adjusted from time to time as follows:
<PAGE>
(i) In case the Company shall (x) pay a dividend or make a distribution on
the Common Stock in shares of Common Stock, (y)subdivide the outstanding Common
Stock into a greater number of shares or (z) combine the outstanding Common
Stock into a smaller number of shares, the Conversion Price shall be adjusted so
that the Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock of the Company which
such holder would have owned or have been entitled to receive after the
happening of any of the events described above had such Security been converted
immediately prior to the record date in the case of a dividend or the effective
date in the case of subdivision or combination. An adjustment made pursuant to
this subparagraph (i) shall become effective immediately after the record date
in the case of a dividend, except as provided in subparagraph (vii) below, and
shall become effective immediately after the effective date in the case of a
subdivision or combination.
(ii) In case the Company shall issue rights or warrants to all holders of
shares of Common Stock entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
of Common Stock (as defined for purposes of this subparagraph (ii) in
subparagraph (v) below), the Conversion Price in effect after the record date
for the determination of stockholders entitled to receive such rights or
warrants shall be determined by multiplying the Conversion Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on such record date
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock so offered would purchase at such
current market price, and the denominator of which shall be the number of shares
of Common Stock outstanding on the record date for issuance of such rights or
warrants plus the number of additional shares of Common Stock receivable upon
exercise of such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (vii) below, after such record
date.
(iii) In case the Company shall distribute to all holders of Common Stock
any shares of capital stock of the Company (other than Common Stock) or
evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company or dividends payable in
Common Stock) or rights or warrants to subscribe for or purchase any of its
securities (excluding those rights or warrants referred to in subparagraph (ii)
above) (any of the foregoing being hereinafter in this subparagraph (iii) called
the "Assets"), then, in each such case, the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the record date for determination of
stockholders entitled to receive such distribution by a fraction the numerator
of which shall be the current market price per share (as defined for purposes of
this subparagraph(iii) in subparagraph (v) below) of the Common Stock at such
record date for determination of stockholders entitled to receive such
distribution less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the Assets
so distributed applicable to one share of Common Stock, and the denominator of
which shall be the current market price per share (as defined in subparagraph
(v) below) of the Common Stock at such record date. Such adjustment shall become
effective immediately, except as provided in subparagraph (vii) below, after the
record date for the determination of stockholders entitled to receive such
distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of shares
of Common Stock into which a Security is convertible shall have been adjusted
because the Company has declared a dividend, or made a distribution, on the
outstanding shares of Common Stock in the form of any right or warrant to
purchase securities of the Company, or the Company has issued any such right or
warrant, then, upon the expiration of any such unexercised right or unexercised
warrant, the Conversion Price shall forthwith be adjusted to equal the
Conversion Price that would have applied had such right or warrant never been
declared, distributed or issued.
<PAGE>
(v) For the purpose of any computation under subparagraphs(ii) or (iii)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices of the Common Stock for the
shorter of (i) 30 consecutive Trading Days ending on the last full Trading Day
on the exchange or market specified in the second following sentence prior to
the Time of Determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such rights or
warrants or such distribution through such last full Trading Day prior to the
Time of Determination. The term "Time of Determination" as used herein shall be
the time and date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants, or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the exchange or
market specified in the following sentence. The closing price for each day shall
be the reported last sales price, regular way, or, in case no sale takes place
on such day, the average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange Composite Tape
or, if the Common Stock is not listed or admitted to trading on the New York
Stock Exchange at such time, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the Nasdaq National
Market ("NNM") or, if the Common Stock is not quoted on NNM, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NNM or, if bid and asked prices for the Common Stock on each such
day shall not have been reported through NNM, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange member firm
regularly making a market in the Common Stock selected for such purpose by the
Company or, if no such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Company. As
used herein, the term "Trading Day" with respect to Common Stock means(x) if the
Common Stock is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock Exchange
or such other national securities exchange, as the case may be, is open for
business or (y) if the Common Stock is quoted on NNM, a day on which trades may
be made on NNM or (z) otherwise, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this subparagraph
(vi) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Section 15.05(a) shall
be made to the nearest cent or to the nearest .01 of a share, as the case may
be, with one-half cent and .005 of a share, respectively, being rounded upward.
Anything in this Section 15.05(a) to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section 15.05(a), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(vii) In any case in which this Section 15.05(a) provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event(x) issuing to the
holder of any Security converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (y) paying to such holder any amount of cash in lieu of any
fractional share of Common Stock pursuant to Section 15.04.
<PAGE>
(viii) Whenever the Conversion Price is adjusted as herein provided, the
Company shall file with the Trustee an Officers' Certificate, setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment; provided, however, that the
failure of the Company to file such Officers' Certificate shall not affect the
legality or validity of any corporate action by the Company.
(ix) Whenever the Conversion Price for any series of Securities is adjusted
as provided in this Section 15.05(a), the Company shall cause to be mailed to
each holder of Securities of such series at its then registered address by
first-class mail, postage prepaid, a notice of such adjustment of the Conversion
Price setting forth such adjusted Conversion Price and the effective date of
such adjusted Conversion Price; provided, however, that the failure of the
Company to give such notice shall not affect the legality or validity of any
corporate action by the Company.
(b)(i) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (x) any reclassification or change of
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (y) any consolidation, merger
or combination of the Company with or into another corporation as a result of
which holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (z) any sale or conveyance of all or substantially all of
the assets of the Company to any other entity as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock,
then appropriate provision shall be made by supplemental indenture so that (A)
the holder of any outstanding Security that is convertible into Common Stock
shall have the right to convert such Security into the kind and amount of the
shares of stock and securities or other property or assets (including cash) that
would have been receivable upon such reclassification, change, consolidation,
merger, combination, sale, or conveyance by a holder of the number of shares of
Common Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
and (B) the number of shares of any such other stock or securities into which
such Security shall thereafter be convertible shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the terms of adjustment provided for in this Section, and Sections 15.02,
15.03, 15.04, 15.06, 15.07, 15.08 and 15.09 shall apply on like terms to any
such other stock or securities.
(ii) In case of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation, merger or combination of the Company with
or into another corporation or of the sale or conveyance of all or substantially
all of the assets of the Company, the Company shall cause to be filed with the
Trustee and to be mailed to each holder of Securities that are convertible into
shares of Common Stock at such holder's registered address, the date on which
such reclassification, change, consolidation, merger, combination, sale or
conveyance is expected to become effective, and the date as of which it is
expected that holders of Common Stock shall be entitled to exchange their Common
Stock for stock, securities or other property deliverable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance.
<PAGE>
Section 15.06 Taxes on Shares Issued.
The delivery of stock certificates upon conversions of Securities shall
be made without charge to the holder converting a Security for any tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the delivery
of stock registered in any name other than of the holder of any Security
converted, and the Company shall not be required to deliver any such stock
certificate unless and until the person or persons requesting the delivery
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 15.07 Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities of any series which are convertible into
Common Stock will upon delivery be fully paid and nonassessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange or such other national stock exchange on which
the Common Stock is listed or admitted to trading or if permitted by the rules
of NASDAQ if the Common Stock is approved by it for listing or quotation, list
and keep listed for so long as the Common Stock shall be so listed on such
exchange, upon official notice of issuance, all Common Stock deliverable upon
conversion of Securities of any series which are convertible into Common Stock.
Section 15.08 Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price applicable
to such Securities, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be delivered upon the
conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to deliver
any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion or for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article XV.
Section 15.09 Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all Outstanding Securities of any series of Securities
which are convertible into Common Stock.
<PAGE>
Section 15.10 Other Conversions.
If so provided in a Board Resolution with respect to the Securities of
a series, the principal amount of the Securities of such series shall be
convertible into or exchangeable for a principal amount of other securities of
the Company (which other securities may be issued under this Indenture or
otherwise), and the issuance of such securities upon any such conversion or
exchange shall be made in accordance with the terms of such Board Resolution.
ARTICLE XVI.
DEFEASANCE AND COVENANT DEFEASANCE
Section 16.01 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 16.02 or (b) covenant
defeasance of the Securities of a series under Section 16.03, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article XVI, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to have either Section
16.02 (if applicable) or Section 16.03 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article XVI.
Section 16.02 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series (except for certain
obligations to register the transfer or exchange of Securities of such series,
to replace stolen, lost or mutilated Securities of such series, and to maintain
paying agencies) on and after the date the conditions precedent set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company and upon Company Request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 16.04 as more fully set forth in such Section,
payments of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to such
Securities under Section 3.04, 3.05, 3.06, 6.07, 10.02 and 10.03 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article XVI. Subject to compliance with this Article XVI, the Company
may exercise its option under this Section 16.02 notwithstanding the prior
exercise of its option under Section 16.03 with respect to the Securities of
such series.
Section 16.03 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to the Outstanding Securities of a particular series, the
Company shall be released from its obligations under Sections 8.01, 10.04 and
10.06 (and any other covenant applicable to such Securities that is determined
pursuant to Section 3.01 to be subject to covenant defeasance under this
Section) and the occurrence of an event specified in Clause (4) of Section 5.01
with respect to any of Sections 8.01, 10.04, 10.06, 10.07, 10.08 or 10.09 (and
any other Event of Default applicable to such Securities that is determined
pursuant to Section 3.01 to be subject to covenant defeasance under this
Section) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition, limitation or restrictive covenant
set forth in any such Section or Clause whether directly or indirectly by reason
of any reference elsewhere herein to any such Section or Clause or by reason of
any reference in any such Section or Clause to any other provision herein or in
any other document, including any supplement hereto, any Board Resolution or
Officers' Certificate delivered hereto but the remainder of this Indenture and
such Securities shall be unaffected thereby.
<PAGE>
Section 16.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 16.02 or Section 16.03 to the Outstanding Securities of a
particular series:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article XVI applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereto delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of and any premium, if any, and interest on the
Outstanding Securities of such series on the maturity of such principal, premium
or interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which such
payments are due in accordance with the terms of this Indenture and of such
Securities. 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 XI, which shall be given effect in applying the
foregoing. For this purpose, "U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depositary 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 depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities of such series
shall have occurred and be continuing (A) on the date of such deposit or (B)
insofar as subsections 5.01(6) and (7) are concerned, at any time during the
period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood that
the condition in this condition shall not be deemed satisfied until the
expiration of such period). (3) Such defeasance or covenant defeasance shall not
(A) cause the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 6.08 or for purposes of the Trust Indenture Act
with respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(c) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound.
<PAGE>
(d) In the case of an election under Section 16.02, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of 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 the Outstanding
Securities of such series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amounts, 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 16.03, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred.
(f) Such defeasance or covenant defeasance shall be effected in compliance
with any additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 3.01.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 16.02 or
the covenant defeasance under Section 16.03 (as the case may be) have been
complied with.
Section 16.05 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee - collectively, for purposes for
this Section 16.05, the "Trustee") pursuant to Section 16.04 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium and interest, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 16.04 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 16.04 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 16.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 16.02 or 16.03 with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article XVI until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 16.02 or 16.03; provided,
however, that if the Company makes any payment of the principal of or any
premium or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
<PAGE>
ARTICLE XVII.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 17.01 Immunity of Incorporators, Stockholders, Officers and Directors.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability of
every name and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] U.S. WIRELESS CORPORATION
By:
Name:
Title:
Attest:
Name:
Title:
[SEAL] _________________________
By:
Name:
Title:
Attest:
Name:
Title:
EXHIBIT 4.5
U.S. WIRELESS CORPORATION
and
---------------------,
as Warrant Agent
FORM OF
WARRANT AGREEMENT
Dated as of ____________
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
<S> <C> <C>
Section 1.01. Issuance of Warrants............................................................................2
Section 1.02. Execution and Delivery of Warrant Certificates..................................................2
Section 1.03. Issuance of Warrant Certificates................................................................4
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Warrant Price...................................................................................4
Section 2.02. Duration of Warrants............................................................................4
Section 2.03. Exercise of Warrants............................................................................4
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.01. No Rights as Warrant Securityholders Conferred by Warrants or Warrant Certificates..............6
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.......................................6
Section 3.03. Holder of Warrant Certificate May Enforce Rights................................................6
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.01. Exchange and Transfer of Warrant Certificates...................................................7
Section 4.02. Treatment of Holders of Warrant Certificates....................................................7
Section 4.03. Cancellation of Warrant Certificates............................................................8
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent...................................................................................8
Section 5.02. Conditions of Warrant Agent's Obligations.......................................................8
Section 5.03. Resignation and Appointment of Successor.......................................................10
Section 5.04. Payment of Taxes...............................................................................11
<PAGE>
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Amendment......................................................................................11
Section 6.02. Notices and Demands to the Company and Warrant Agent...........................................11
Section 6.03. Addresses......................................................................................11
Section 6.04. Applicable Law.................................................................................11
Section 6.05. Delivery of Prospectus.........................................................................11
Section 6.06. Obtaining of Governmental Approvals............................................................12
Section 6.07. Persons Having Rights under Warrant Agreement..................................................12
Section 6.08. Headings.......................................................................................12
Section 6.09. Counterparts...................................................................................12
Section 6.10. Inspection of Agreement........................................................................12
Section 6.11. Adjustment of Number of [Preferred Stock] [Shares of Common Stock]; Notices....................12
Section 6.12. Fractional Shares..............................................................................18
</TABLE>
<PAGE>
THIS WARRANT AGREEMENT dated as of _____________ between U.S. Wireless
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company") and _____________, a
______________ organized and existing under the laws of _________________, as
Warrant Agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time,
either jointly or separately, certain of its (i) senior debt securities (the
"Senior Debt Securities"), and/or (ii) subordinated debt securities (the
"Subordinated Debt Securities", and, together with the Senior Debt Securities,
the "Debt Securities"), and/or (iii) preferred stock, par value $.01 (the
"Preferred Stock"), and/or (iv) common stock, par value $.01 per share (the
"Common Stock"), and/or (v) warrants (the "Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock, and/or (vi) units consisting of two
or more of the foregoing securities (the "Units) in one or more offerings on
terms determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No. 333- ),
including a prospectus, relating to the securities described above and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"); and
[If Debt Securities - WHEREAS, the Company has entered into an senior
indenture dated as of _____________ (the "Senior Indenture"), with
______________________________, as trustee (such trustee, and any successor to
such trustee, to be herein called the "Trustee"), and a subordinated indenture
dated as of ____________ (the "Subordinated Indenture and together with the
Senior Indenture, the "Indenture"), with ______________________________, as
Trustee, providing for the issuance from time to time of its [Senior]
[Subordinated] Debt Securities to be issued in one or more series as provided in
the Indenture; and]
[If Preferred Stock - WHEREAS, the Company has established a series of
Preferred Stock in accordance with the terms of the Certificate of Vote of
Directors Establishing a Series of a Class of Stock relating to such Preferred
Stock (the "Certificate of Vote"); and]
[If Warrants attached - WHEREAS, the Company proposes to sell the [Debt
Securities] [Preferred Stock] [Common Stock] now being offered (the "Offered
Securities" ) with warrant certificates evidencing one or more warrants (the
"Warrants" or, individually, a "Warrant") representing the right to purchase the
[Debt Securities] [Preferred Stock] [Common Stock] purchasable through exercise
of the Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and]
[If Warrants alone - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [Debt Securities][Preferred
Stock][Common Stock] purchasable through exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
<PAGE>
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Warrant Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES
Section 1.01. Issuance of Warrants. [If Offered Securities with Warrants
Attached] - Warrants shall be [initially] issued in connection with the issuance
of the Offered Securities [but shall be separately transferable on and after
____________ (the "Detachable Date")][and shall not be separately transferable].
Warrant Certificates shall be [initially] issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
________ Warrants for each [share of Offered Securities] [$________ principal
amount of Offered Securities or its equivalent in a foreign currency or
composite currency] included in such unit.] [If Warrants alone - Upon issuance
each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase [________ shares of Warrant Securities] [a
Warrant Security in the principal amount of $_________ or its equivalent in a
foreign currency or composite currency].
Section 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in [bearer] [registered] form
substantially in the form set forth in Exhibit A hereto, shall be dated as of
its issue date and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant Certificates may be listed or authorized for trading, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by its
Chairman of the Board, the Chief Executive Officer, President, Chief Financial
Officer and Treasurer, Executive Director, Global Treasury or Comptroller, and
attested by its Clerk or any of its Assistant Clerks, under its corporate seal.
Such signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
<PAGE>
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates
nevertheless may be countersigned and delivered as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company, and
any Warrant Certificate may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Warrant Certificate, shall be
the proper officers of the Company, although at the date of the execution of
this Agreement any such person was not such officer.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _________], without charge to the holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
[If bearer Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [If Offered Securities with Warrants
which are not immediately detachable, prior to the Detachable Date, the [bearer]
[registered owner] of the Offered Security to which such Warrant Certificate was
initially attached, and after such Detachable Date] the bearer of such Warrant
Certificate.]
[If registered Warrants - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Offered Securities with Warrants which are
not immediately detachable - or upon the register of the Offered Securities
prior to the Detachable Date.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date.]
<PAGE>
Section 1.03. Issuance of Warrant Certificates. Warrant Certificates evidencing
the right to purchase [___ shares] [an aggregate principal amount not exceeding
$_________] of Warrant Securities or its equivalent in a foreign currency or
composite currency (except as provided in Sections 2.03(c), 3.02 and 4.01) may
be executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right to purchase [____ shares] [up to $___________ aggregate principal amount]
of Warrant Securities or its equivalent in a foreign currency or composite
currency and shall deliver such Warrant Certificates to or upon the order of the
Company. Subsequent to such original issuance of the Warrant Certificates, the
Warrant Agent shall countersign a Warrant Certificate only if the Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Warrant Certificates [If registered Warrants - or in connection
with their transfer], as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.01. Warrant Price. [On __________, ] the exercise price of each
Warrant is [$]___________. [During the period from __________ through and
including _________, the exercise price of each Warrant will be [$]________ plus
[accreted original issue discount] [accrued interest] from ________. On
_________, the exercise price of each Warrant will be [$]_________. During the
period from ____________, through and including __________, the exercise price
of each Warrant will be [$]_______________ plus [accreted original issue
discount] [accrued interest] from ___________; [in each case the original issue
discount will be accreted at a __% annual rate, computed on a [semiannual]
[annual] basis using a 360-day year consisting of twelve 30-day months;] [in
each case accrued interest will be computed at a rate equal to __%]]. Such
purchase price of Warrant Securities may be denominated in U.S. dollars or its
equivalent in a foreign currency or composite currency and may be determined in
reference to an index and is referred to in this Agreement as the "Warrant
Price." [The original issue discount for each $1,000 principal amount of Warrant
Securities (or its equivalent thereof in a foreign currency or composite
currency) is [$]_____________.]
Section 2.02. Duration of Warrants. Each Warrant evidenced by a Warrant
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [_____________] and at or before the close of business
on _____________ (the "Expiration Date"). Each Warrant not exercised at or
before the close of business on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificate evidencing such Warrant and
under this Agreement shall cease.
Section 2.03. Exercise of Warrants. During the period specified in Section 2.02,
any whole number of Warrants, if the Warrant Certificate evidencing the same
shall have been countersigned by the Warrant Agent, may be exercised by
providing certain information set forth on the reverse side of the Warrant
Certificate and by paying in full, [in cash or by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised, to
the Warrant Agent at its corporate trust office, ____________________ [or at
________________________], provided that such exercise is subject to receipt
within five Business Days (as defined in Section 6.11(f) hereof) of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the Company by
telephone at the end of each day on which a [payment] [wire transfer] for the
exercise of Warrants is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephonic advice to the Company in
writing.
<PAGE>
(a) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company [and the Trustee under the Indenture] of the number of
Warrants exercised in accordance with the terms and conditions of this Agreement
and the Warrant Certificates, (ii) the instructions of each holder of the
Warrant Certificates evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon such exercise, (iii)
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and (iv) such other information as the Company
[or the Trustee] shall reasonably require.
(b) As soon as practicable after the exercise of any Warrant or Warrants, the
Company shall issue[, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
Warrant or Warrants,] the Warrant Security or Warrant Securities to which such
holder is entitled, in fully registered form, registered in such name or names
as may be directed by such holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver to or upon the order of such holder, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
(c) The Company shall not be required to pay any stamp or other tax or other
governmental charge required to be paid in connection with any transfer involved
in the issue of the Warrant Securities; and in the event that any such transfer
is involved, the Company shall not be required to issue or deliver any Warrant
Securities until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
<PAGE>
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 3.01. No Rights as Warrant Securityholders Conferred by Warrants or
Warrant Certificates. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any,) or interest, if any, on the Warrant Securities or to enforce any of the
covenants in the Indenture].
Section 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably satisfactory
to them of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and of indemnity reasonably satisfactory to them and, in
the case of mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and evidencing a like number of Warrants. Upon the issuance of
any new Warrant Certificate 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 Warrant Agent) in connection therewith. Every substitute
Warrant Certificate executed and delivered pursuant to this Section in lieu of
any lost, stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Warrant Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered 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 of mutilated, lost, stolen or destroyed Warrant Certificates.
Section 3.03. Holder of Warrant Certificate May Enforce Rights. Notwithstanding
any of the provisions of this Warrant Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, [the Trustee,] the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrant or Warrants
evidenced by his Warrant Certificate in the manner provided in his Warrant
Certificate and in this Warrant Agreement.
<PAGE>
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
Section 4.01. Exchange and Transfer of Warrant Certificates. [If Offered
Securities with Warrants which are immediately detachable or Warrants alone -
Upon] [If Offered Securities with Warrants which are not immediately detachable
- - Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purposes of effecting or in
conjunction with an exchange or transfer of such Offered Security. On or prior
to the Detachable Date, each transfer of the Offered Security on the register of
the Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent or [__________], Warrant Certificates may be
exchanged for other Warrant Certificates in denominations evidencing Warrants,
each Warrant entitling the holder thereof to purchase [_____ shares]
[$_____________ principal amount of Warrant Securities or its equivalent in a
foreign currency or composite currency] at the Warrant Price [If registered
Warrants - or may be transferred in whole or in part] [If bearer or registered
Warrants - provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered.] [If
registered Warrants - The Warrant Agent shall keep, at its corporate trust
office [or at __________], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates in
accordance with Section 1.02 and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or at ______] for transfer, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Warrant Agent.] No service charge
shall be made for any exchange or transfer of Warrant Certificates, but the
Company may require payment of a sum sufficient to cover any stamp or other tax
or other governmental charge that may be imposed in connection with any such
exchange or transfer. Whenever any Warrant Certificates are so surrendered for
exchange or transfer an authorized officer of the Warrant Agent shall
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates duly authorized and executed by the Company,
as so requested. The Warrant Agent shall not be required to effect any exchange
or transfer which will result in the issuance of a Warrant Certificate
evidencing a fraction of a Warrant or a number of full Warrants and a fraction
of a Warrant. All Warrant Certificates issued upon any exchange or transfer of
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Warrant
Agreement, as the Warrant Certificates surrendered for such exchange or
transfer.
Section 4.02. Treatment of Holders of Warrant Certificates. [If Offered
Securities with bearer Warrants which are not immediately detachable - Subject
to Section 4.01, each] [If Offered Securities with bearer Warrants which are
immediately detachable or bearer Warrants alone - Each] Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent and
all other persons dealing with such bearer as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.] [If
registered Warrants alone or registered Warrants which are not immediately
detachable - Every holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the Warrant Certificate
is transferred on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company and the Warrant Agent may
treat the registered holder as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
<PAGE>
Section 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, transfer or exercise of the Warrants evidenced thereby
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Warrant Agreement, no Warrant Certificate shall be
issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver
to the Company from time to time or otherwise dispose of cancelled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
Section 5.01. Warrant Agent. The Company hereby appoints ____________ as Warrant
Agent of the Company in respect of the Warrants and the Warrant Certificates
upon the terms and subject to the conditions herein set forth; and ____________
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees to pay the Warrant
Agent promptly the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability, or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim or liability in the premises.
<PAGE>
(b) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrants, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
with any of the owners or holders of the Warrants.
(c) Documents. The Warrant Agent shall be protected and shall incur no liability
for or in respect of any action taken or thing suffered by it in reliance upon
any Warrant Certificates, notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(d) Certain Transactions. The Warrant Agent, and its officers, directors and
employees, may become the owner of, or acquire any interest in, any Warrants,
with the same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, it or they may engage
or be interested in any financial or other transaction with the Company and may
act on, or as depositary, trustee or agent for, any committee or body of holders
of Warrant Securities or other obligations of the Company as freely as if it
were not the Warrant Agent hereunder. [Nothing in this Warrant Agreement shall
be deemed to prevent the Warrant Agent from acting as Trustee under the
Indenture.]
(e) No Liability for Interest. The Warrant Agent shall not be under any
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Warrant Agreement or of the Warrants.
(f) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of any of the Warrants.
(g) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates contained (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(h) No Implied Obligations. The Warrant Agent shall be obligated to perform such
duties as are herein and in the Warrant Certificates specifically set forth and
no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
<PAGE>
Section 5.03. Resignation and Appointment of Successor. The Company agrees, for
the benefit of the holders from time to time of the Warrant Certificates, that
there shall at all times be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(a) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation will become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent hereunder may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligations
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(b) In case at any time the Warrant Agent shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable Federal or State bankruptcy law or
similar law or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of all or any substantial part of its
property or assets, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or of all or any
substantial part of its property or assets shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions of Title
11 of the United States Code, as now constituted or hereafter amended, or under
any other applicable Federal or State bankruptcy or similar law, or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, it shall be disqualified from serving as Warrant Agent and a
successor Warrant Agent, qualified as aforesaid, shall be appointed by the
Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by
the successor Warrant Agent of such appointment, the Warrant Agent so
disqualified shall cease to be Warrant Agent hereunder.
(c) Any successor Warrant Agent appointed hereunder shall execute, acknowledge
and deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Warrant Agent, without
further act, deed or conveyance, shall become vested with all authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor with like
effect as if originally named as Warrant Agent hereunder, and such predecessor,
upon payment of its charges and disbursements then unpaid, shall thereupon
become obligated to transfer, deliver and pay over, and such successor Warrant
Agent shall be entitled to receive, all monies, securities and other property on
deposit with or held by such predecessor, as Warrant Agent hereunder.
<PAGE>
(d) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Warrant Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 5.04. Payment of Taxes. The Company will pay all stamp and other duties,
if any, to which, under the laws of the United States of America, this Warrant
Agreement or the original issuance of the Warrant Certificates may be subject.
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Amendment. This Warrant Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Warrant Agreement as the
Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not adversely affect the interests of the holders of the
Warrant Certificates.
Section 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice of demand to
the Company.
Section 6.03. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Warrant Agreement shall be addressed to
_____________, Attention: ____________, and any communications from the Warrant
Agent to the Company with respect to this Warrant Agreement shall be addressed
to U.S. Wireless Corporation, 2303 Camino Ramon, Suite 200, San Ramon,
California 94583, Attention: General Counsel (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
Section 6.04. Applicable Law. The validity, interpretation and performance of
this Warrant Agreement and each Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed by the laws of the
State of New York.
Section 6.05. Delivery of Prospectus. The Company will furnish to the Warrant
Agent sufficient copies of a prospectus relating to the Warrant Securities
deliverable upon exercise of Warrants (the "Prospectus"), and the Warrant Agent
agrees that upon the exercise of any Warrant, the Warrant Agent will deliver to
the holder of the Warrant Certificate evidencing such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise, a Prospectus.
<PAGE>
Section 6.06. Obtaining of Governmental Approvals. The Company will from time to
time take all action which may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and authorities and
securities acts filings under United States Federal and State laws (including,
without limitation, maintenance of the effectiveness of a registration statement
in respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
Section 6.07. Persons Having Rights under Warrant Agreement. Nothing in this
Warrant Agreement expressed or implied and nothing that may be inferred from any
of the provisions hereof is intended, or shall be construed, to confer upon, or
give to, any person or corporation other than the Company, the Warrant Agent and
the holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements in this Warrant Agreement contained shall be for the
sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the holders of the Warrant Certificates.
Section 6.08. Headings. The descriptive headings of the several Articles
and Sections of this Warrant Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 6.09. Counterparts. This Warrant Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.10. Inspection of Agreement. A copy of this Warrant Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
Section 6.11. Adjustment of Number of [Preferred Stock] [Shares of Common
Stock]; Notices. The number of [Preferred Stock] [shares of Common Stock]
purchasable upon the exercise of each Warrant (the "Exercise Rate") is subject
to adjustment from time to time as provided in this Section or as may otherwise
be provided in an amendment hereto, subject to Section 6.01 hereof.
(a) Dividends or Distributions in [Preferred Stock] [Shares of Common Stock]. In
case the Company shall pay or make a dividend or other distribution on [any
class or series of Preferred Stock for which Warrants may be exercised] [its
Common Stock] in [such Preferred Stock] [shares of its Common Stock], the
Exercise Rate in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Exercise Rate by a
fraction of which the numerator shall be the number of shares of [such Preferred
Stock] [Common Stock] outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of [Preferred Stock] [Common Stock] at
any time outstanding shall not include shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on
shares of [Preferred Stock] [Common Stock] held in the treasury of the Company.
<PAGE>
(b) Rights or Warrants. In case the Company shall issue rights or warrants to
all holders of [a class or series of its Preferred Stock for which Warrants may
be exercised] [shares of its Common Stock] entitling them to subscribe for or
purchase shares of [such Preferred Stock] [Common Stock] at a price per share
less than the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Stock] [Common Stock] on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, the Exercise Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Exercise Rate by a fraction of which the numerator shall be the number of
shares of [such Preferred Stock] [Common Stock] outstanding at the close of
business on the date fixed for such determination plus the number of shares of
[such Preferred Stock] [Common Stock] which the aggregate of the offering price
of the total number of shares of [such Preferred Stock] [Common Stock] so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of [such Preferred Stock]
[Common Stock] outstanding at the close of business on the date fixed for such
determination plus the number of shares of [such Preferred Stock] [Common Stock]
so offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (b), the number of
shares of [Preferred Stock] [Common Stock] at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares
of [Preferred Stock] [Common Stock]. The Company will not issue any rights or
warrants in respect of shares of [Preferred Stock] [Common Stock] held in the
treasury of the Company.
(c) Subdivision or Combination. In case outstanding shares of [a class or series
of its Preferred Stock for which Warrants are exercisable] [Common Stock] shall
be subdivided into a greater number of shares of [such Preferred Stock] [Common
Stock], the Exercise Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of [a
class or series of its Preferred Stock for which Warrants are exercisable]
[Common Stock] shall each be combined into a smaller number of shares of [such
Preferred Stock] [Common Stock], the Exercise Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) Dividend or Distribution of Assets. In case the Company shall, by dividend
or otherwise, distribute to all holders of [a class or series of its Preferred
Stock for which Warrants are exercisable] [shares of its Common Stock] evidences
of its indebtedness or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section, any dividend or
distribution paid in cash out of the retained earnings of the Company and any
dividend or distribution referred to in paragraph (a) of this Section), the
Exercise Rate shall be adjusted so that the same shall equal the price
determined by dividing the Exercise Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section) of [such Preferred Stock] [Common Stock] on the date fixed for
such determination less the then fair-market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Warrant Agent and any other Registrar) of the portion
of the assets or evidences of indebtedness so distributed applicable to one
share of [such Preferred Stock] [Common Stock] and the denominator shall be such
current market price per share of [such Preferred Stock] [Common Stock], such
adjustment to become effective immediately prior to the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such distribution.
<PAGE>
(e) Reclassification. The reclassification of [a class or series of its
Preferred Stock for which Warrants are exercisable] [the Company's Common Stock]
into securities other than such [Preferred Stock] [Common Stock] (other than any
reclassification upon a consolidation or merger to which paragraph (1) of this
Section applies) shall be deemed to involve a distribution of such securities
other than such [Preferred Stock] [Common Stock] to all holders of [such
Preferred Stock] [Common Stock] (and the effective date of such reclassification
shall be deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section), and (ii) a
subdivision or combination, as the case may be, of the number of shares of [such
Preferred Stock] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Stock] [Common
Stock] outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "The day upon which such subdivision
becomes effective" or "The day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section).
(f) Current Market Price. For the purpose of any computation under paragraphs
(b) and (d) of this Section, the current market price per share of [Preferred
Stock] [Common Stock] on any date shall be deemed to be the average of the daily
closing prices for the 15 consecutive Business Days selected by the Company
commencing not less than 20 nor more than 30 Business Days before the day in
question. The closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if such [Preferred Stock are] [Common Stock
is] not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which such [Preferred Stock are] [Common Stock
is] listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the Nasdaq National Market or, if such
[Preferred Stock are] [Common Stock is] not listed or admitted to trading on any
national securities exchange or quoted on such Nasdaq National Market, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for the purpose. In the event that no such market trading exists,
the current market price will be determined by three independent nationally
reorganized investment banking firms selected by the Company in such manner as
the Board of Directors deems appropriate. "Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions where Warrants may be surrendered for exercise are authorized or
obligated by law or executive order to close.
(g) Adjustments for Tax Purposes. The Company may make such adjustments in the
Exercise Rate, in addition to those required by paragraphs (a), (b), (c) and (d)
of this Section, as it considers to be advisable in order that any event treated
for federal income tax purposes as a dividend of stock or stock rights shall not
be taxable to the recipients.
(h) No Adjustment Below Par Value. Notwithstanding the provisions of this
Section, the Exercise Rate shall not be increased such that the price paid per
share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Rate, for legally issued, fully paid and
nonassessable shares of [Preferred Stock] [Common Stock].
<PAGE>
(i) Permitted Distributions. The granting of the right to purchase shares of
[Preferred Stock] [Common Stock] (whether from treasury shares or otherwise),
pursuant to (i) any dividend or interest reinvestment plan or [Preferred Stock]
[Common Stock] purchase plan providing for the reinvestment of dividends or
interest payable on securities of the Company and/or the investment of periodic
optional payments; and (ii) any stock option plans and/or employee benefit or
similar plans shall not be deemed to constitute an issue of rights or warrants
by the Company.
(j) No Adjustments Necessary. No adjustment in the Exercise Rate shall be
required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, provided, however, that any adjustment
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(k) Notice of Adjustment. Whenever the Exercise Rate is adjusted as herein
provided, the Company shall forthwith compute the adjusted Exercise Rate in
accordance herewith and prepare a certificate signed by an officer of the
Company setting forth the adjusted Exercise Rate and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Warrant Agent and any other Registrar and (ii) cause
a notice stating that such adjustment has been effected and the adjusted
Exercise Rate to be mailed to the holders of Warrants at their last addresses as
they shall appear on the Warrant Register.
(l) Successor Company. In case of any reclassification or change of outstanding
shares of [the class or series of Preferred Stock issuable upon exercise of the
Warrants] [Common Stock] (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger or consolidation of the Company with
one or more other corporations (other than a merger or consolidation in which
the Company is the continuing corporation and which does not result in any
reclassification or change of outstanding shares of [the class or series of
Preferred Stock issuable upon exercise of the Warrants] [Common Stock]), or in
case of the merger of the Company into another corporation, or in case of any
sale or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the holder of Warrants of each series
then outstanding shall have the right to exercise such Warrant for the kind and
amount of shares of capital stock or other securities and property, including
cash, receivable upon reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of [such class or series of
Preferred Stock] [Common Stock] for which such Warrant might have been exercised
immediately prior to such reclassification, change consolidation, merger, sale
or conveyance. In any such case, the Company, or such successor or purchasing
corporation, as the case may be, shall execute and deliver to the Warrant Agent
a supplemental Warrant Agreement containing provisions to the effect set forth
above and providing further for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) Company to Reserve Capital Securities. The Company shall at all times
reserve and keep available out of the aggregate of its authorized but unissued
shares or its issued shares held in its treasury, or both, for the purpose of
effecting the exercise of the Warrants, such full number of its duly authorized
shares of [Preferred Stock] [Common Stock] as shall from time to time be
sufficient to effect the exercise of all outstanding Warrants.
If any shares of [Preferred Stock] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon exercise, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
<PAGE>
The Company covenants that all shares of [Preferred Stock] [Common
Stock] which may be delivered upon exercise of Warrants shall upon delivery be
fully paid and nonassessable by the Company, subject to [ADD APPROPRIATE
DELAWARE LAW PROVISIONS, IF APPLICABLE] and, except for taxes in connection with
the exercise of the Warrants, free from all taxes, liens and charges with
respect to the issue or delivery thereof.
(n) Company to Give Notice of Certain Events. In the event
(1) that the Company shall pay any dividend or make any distribution to the
holders of shares of [Preferred Stock issuable upon exercise of the Warrants]
[Common Stock] otherwise than in cash charged against consolidated net earnings
or retained earnings of the Company and its consolidated subsidiaries or in
[such Preferred Stock] [shares of Common Stock]; or
(2) that the Company shall offer for subscription or purchase, pro rata, to
the holders of [Preferred Stock issuable upon exercise of the Warrants] [Common
Stock] any additional shares of stock of any class or any securities exercisable
for or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares of [the class
or series of Preferred Stock issuable upon the exercise of the Warrants] [Common
Stock] (other than a change in par value, or from par value to no par value, or
from no par combination), or of any merger of consolidation of the Company with,
or merger of the Company into, another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and which does
not result in reclassification or change of outstanding shares of [Preferred
Stock issuable upon exercise of the Warrants] [Common Stock]), or of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety; or
(4) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least twenty
days (or ten days in any case specified in clause (1) or (2) above) prior to (i)
the record date fixed with respect to any of the events specified in (1) and (2)
above and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly after providing such notice to the Warrant Agent or such
other Registrar a copy of such notice to the holders thereof at their last
addresses as they shall appear upon the Warrant Register. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(o) Company Determination Final. Any determination that the Company or the
Board of Directors must make pursuant to this Section is conclusive.
(p) Warrant Agent's Adjustment Disclaimer. The Warrant Agent has no duty to
determine when an adjustment under this Section should be made, how it should be
made or what it should be. The Warrant Agent has no duty to determine whether a
supplemental warrant agreement under paragraph (l) need be entered into or
whether any provisions of any supplemental warrant agreement are correct. The
Warrant Agent shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon exercise of Warrants.
The Warrant Agent shall not be responsible for the Company's failure to comply
with this Section.
(q) Adjustments and Warrant Certificates. Irrespective of any adjustments in the
number or kind of shares purchasable upon the exercise of the Warrants, Warrant
Certificates theretofore or thereafter issued may continue to express the same
number and kind of shares per Warrant as are stated on the Warrant Certificates
initially issuable pursuant to this Agreement.
<PAGE>
(r) Subsequent Event. After an adjustment to the Exercise Rate under this
Section, any subsequent event requiring an adjustment under this Section shall
cause an adjustment to the Exercise Rate as so adjusted.
Section 6.12. Fractional Shares. The Company shall not be required to deliver
fractions of shares of [Preferred Stock] [Common Stock] upon exercises of
Warrants. If more than one Warrant shall be surrendered for exercise at one time
by the same holder, the number of full shares which shall be deliverable upon
exercise thereof shall be computed on the basis of the aggregate of the Warrants
so surrendered instead of any fractional share of [Preferred Stock] [Common
Stock] which would otherwise be issuable upon exercise of any Warrant or
Warrants (or specified portions thereof). The Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price per share of [Preferred Stock] [Common Stock] (as determined
in accordance with Section 6.11(f) or in any other manner prescribed by the
Board of Directors) at the close of business on the last Business Day prior to
the Date of Exercise.]
IN WITNESS WHEREOF, U.S. Wireless Corporation has caused this Warrant
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Clerk or one of
its Assistant Clerks; and ___________________ has caused this Warrant Agreement
to be signed by one of its duly authorized officers, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, all as of the day and year first above written.
U.S. WIRELESS CORPORATION
By
[Warrant Agent]
By
<PAGE>
EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
<TABLE>
<CAPTION>
<S> <C>
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants which transferred or exchanged
are not immediately.] unless attached to a detachable:
[Title of Offered Securities]
[Form of Legend if Prior to ________ this
Warrants are not exercised in whole or in part.] Warrant cannot be immediately exercisable:
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
U.S. WIRELESS CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN THE CITY OF NEW YORK ON
-----------.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer] [owner] to purchase, at any time [after the
close of business on ___________ and] on or before the close of business on
____________, [$]__________ [principal amount] [shares] of [Title of Warrant
Securities] (the "Warrant Securities") of U.S. Wireless Corporation (the
"Company"), issued and to be issued [under the Indenture (as hereinafter
defined)] [by the Company], on the following basis: [on __________,] the
exercise price of each Warrant is [$]_______________, [during the period from
_________ through and including ___________, the exercise price of each Warrant
will be [$]___________ plus [accreted original issue discount] [accrued
interest] from __________, on ______________, the exercise price of each Warrant
will be [$]__________, during the period from __________, through and including
_____________, the exercise price of each Warrant will be [$]________ plus
[accreted original issue discount] [accrued interest] from __________, [in each
case, the original issue discount will be accreted at a _ % annual rate,
computed on a [semiannual] [annual] basis, using a 360-day year consisting of
twelve 30-day months;] [in each case accrued interest will be computed at a rate
equal to __%]] (the "Warrant Price")]. [The original issue discount for each
[$]_________ principal amount of Warrant Securities is [$]__________]. The
[bearer] [owner] may exercise the Warrants evidenced hereby by providing certain
information set forth on the back hereof and by paying in full, in lawful money
of _______, [in cash or by certified check or official bank check or by bank
wire transfer, in each case,] [by bank wire transfer] in immediately available
funds, the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[name of Warrant Agent] or its successor as warrant agent (the "Warrant Agent"),
currently at the address specified on the reverse hereof [or __________,] and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
<PAGE>
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in [denominations
of [$]___________ and any integral multiples thereof] [any number of whole
shares]. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the [registered owner] [bearer]
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _____________ (the "Warrant Agreement"), between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
[registered owner] [bearer] of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at _________________].
[The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued [by the
Company pursuant to the Certificate of Vote applicable to such Warrant
Securities] [under and in accordance with an Indenture dated as of
________________ (the "Indenture"), between the Company and ___________________,
_______________, as trustee (such trustee, and any successor to such trustee, to
be herein called the "Trustee") and will be subject to the terms and provisions
contained in the Indenture. Copies of the Indenture, including the form of the
Warrant Securities, are on file at the corporate trust office of the Trustee
[and at ________________]].]
[If Offered Securities with bearer Warrants which are not immediately
detachable - Prior to ________, this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.]
[If Offered Securities with bearer Warrants which are immediately
detachable or bearer Warrants alone - This Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.
<PAGE>
[If Offered Securities with registered Warrants which are not
immediately detachable - Prior to __________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, this [If Offered Securities
with registered Warrants which are immediately detachable or registered Warrants
alone - This] Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ____________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable - Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone - After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner]
[bearer] hereof to any of the rights of a registered owner of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.]
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of __________
U.S. WIRELESS CORPORATION
By
As Warrant Agent:
By
Authorized Signature
LATHAM & WATKINS
Attorneys at Law
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
Telephone (213) 485-1234
Fax (213) 891-8763
March 13, 2000
FILE NO. 029374-0001
U.S. Wireless Corporation
2303 Camino Ramon, Suite 200
San Ramon, California 94583
Re: $450,000,000 Aggregate Offering
Price of Securities of U.S. Wireless Corporation
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3
filed by U.S. Wireless Corporation, a Delaware corporation (the "Company"), with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), on February 18, 2000 (File No.
333-30770), as amended by Amendment No. 1 filed with the Commission on the date
hereof (the "Registration Statement"), you have requested our opinion with
respect to the matters set forth below.
You have provided us with a draft prospectus (the
"Prospectus") which is a part of the Registration Statement. The Prospectus
provides that it will be supplemented in the future by one or more supplements
to the Prospectus (each, a "Prospectus Supplement"). The Prospectus, as
supplemented by various Prospectus Supplements, will provide for the
registration by the Company of up to $450,000,000 aggregate offering price of
(i) one or more series of senior or subordinated debt securities (the "Debt
Securities"), (ii) one or more series of preferred stock, par value $.01 per
share (the "Preferred Stock"), (iii) shares of common stock, par value $.01 per
share (the "Common Stock"), (iv) warrants to purchase Debt Securities, Common
Stock or Preferred Stock (the "Warrants") or (v) units consisting of two or more
of the foregoing securities (the "Units"). The Debt Securities, Preferred Stock,
Common Stock, Warrants and Units are collectively referred to herein as the
"Securities." Any Debt Securities may be exchangeable for and/or convertible
into shares of Common Stock or Preferred Stock. The Preferred Stock may also be
exchangeable for and/or convertible into shares of Common Stock or another
series of Preferred Stock. The Debt Securities may be issued pursuant to one or
more indentures (collectively, the "Indentures"), in each case between the
Company and a trustee (each, a "Trustee").
<PAGE>
We have made such legal and factual examinations and
inquiries, including an examination of originals and copies certified or
otherwise identified to our satisfaction, of all such documents, corporate
records and instruments of the Company as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to authentic original documents of all
documents submitted to us as copies. For purposes of this opinion, we have
assumed that proper proceedings in connection with the authorization and
issuance of the Securities will be timely and properly completed, in accordance
with all requirements of applicable federal and New York laws and the General
Corporation Law of the State of Delaware, including statutory and reported
decisional law thereunder (the "Delaware GCL"), in the manner presently
proposed.
As to facts material to the opinions, statements and
assumptions expressed herein, we have, with your consent, relied upon oral or
written statements and representations of officers and other representatives of
the Company and others. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject
transaction only of the federal securities laws of the United States, the
internal laws of the State of New York and the Delaware GCL, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or, in the case of Delaware, any other laws, or
as to any matters of municipal law or the laws of any local agencies within any
state.
Subject to the foregoing and the other qualifications set
forth herein, it is our opinion that, as of the date hereof:
1. The Company has the authority pursuant to its Certificate of Incorporation,
as amended (the "Amended Certificate"), to issue up to 40,000,000 shares of
Common Stock. Upon adoption by the Board of Directors of the Company of a
resolution in form and content as required by the Delaware GCL and upon issuance
and delivery of and payment for such shares in the manner contemplated by the
Registration Statement, the Prospectus and the related Prospectus Supplement(s)
and by such resolution, and when the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
and assuming that (i) the terms of such shares as executed and delivered are as
described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), (ii) the Company has a sufficient number of authorized
<PAGE>
but unissued shares under the Amended Certificate at the time of issuance, (iii)
such shares as executed and delivered do not violate any law applicable to the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company, (iv) such shares as executed and delivered comply with
all requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company and (v) such shares are then issued and sold as contemplated in the
Registration Statement, such shares of Common Stock (including, without
limitation, any Common Stock duly issued upon the exchange or conversion of any
shares of Preferred Stock that are exchangeable or convertible into Common
Stock, upon the exercise of any Warrants exercisable for Common Stock or upon
the exchange or conversion of Debt Securities that are exchangeable or
convertible into Common Stock) will be validly issued, fully paid and
nonassessable.
2. The Company has the authority pursuant to the Amended Certificate to issue
1,000,000 shares of Preferred Stock. When (a) a series of Preferred Stock has
been duly established in accordance with the terms of the Amended Certificate
and applicable law, and upon adoption by the Board of Directors of the Company
of a resolution in form and content as required by the Delaware GCL and upon
issuance and delivery of and payment for such shares in the manner contemplated
by the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and by such resolution, and (b) the Registration Statement and any
required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, and assuming that (i) the terms of such shares as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (ii) the Company has a sufficient number of
authorized but unissued shares under the Amended certificate at the time of
issuance, (iii) such shares as executed and delivered do not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, (iv) such shares as executed
and delivered comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company and (v) such shares are then issued and
sold as contemplated in the Registration Statement, such shares of such series
of Preferred Stock (including, without limitation, any Preferred Stock duly
issued upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into another series of Preferred Stock, upon the
exercise of any Warrants exercisable for Preferred Stock or upon the exchange or
conversion of Debt Securities that are exchangeable or convertible into
Preferred Stock ) will be validly issued, fully paid and nonassessable.
3. When (a) the Debt Securities have been duly established in accordance with
the applicable Indenture and applicable law, and upon adoption by the Board of
Directors of the Company of a resolution in form and content as required by the
Delaware GCL and upon due authentication, execution and delivery by the Trustee
of the Debt Securities on behalf of the Company against payment therefor in the
manner contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s) and by such resolution, and (b) the
Registration Statement and any required post-effective amendment thereto and any
and all Prospectus Supplement(s) required by applicable laws have all become
effective under the Securities Act, and assuming that (i) the terms of the Debt
Securities as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), (ii) the
Debt Securities as executed and delivered do not violate any law applicable to
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company, (iii) the Debt Securities as executed and
delivered comply with all requirements and restrictions, if any, applicable to
the Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company and (iv) the Debt Securities are then
issued and sold as contemplated in the Registration Statement, the Debt
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with the terms of the Debt
Securities.
<PAGE>
4. When (a) the Warrants have been duly executed and delivered in accordance
with applicable law, and upon adoption by the Board of Directors of the Company
of a resolution in form and content as required by the Delaware GCL and upon
issuance and delivery of and payment for the Warrants in the manner contemplated
by the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and by such resolution, and (b) the Registration Statement and any
required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, and assuming that (i) the terms of the Warrants as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (ii) the Warrants as executed and delivered do
not violate any law applicable to the Company or result in a default under or
breach of any agreement or instrument binding upon the Company, (iii) the
Warrants as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by any court or
governmental or regulatory body having jurisdiction over the Company and (iv)
the Warrants are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Warrants
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
5. When (a) the Debt Securities have been duly executed and delivered by all
parties thereto, and (b) the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
and assuming that (i) the terms of the applicable Indenture as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (ii) the applicable Indenture as executed and
delivered does not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the Company,
(iii) the applicable Indenture as executed and delivered complies with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, (iv) the Debt Securities are then issued and sold as contemplated
in the Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and (v) the applicable Indenture has been duly authorized,
executed and delivered by the Company, the applicable Indenture will constitute
the valid and legally binding obligation of the Company, enforceable against the
Company under the laws of the State of New York in accordance with the terms of
the applicable Indenture.
The opinions set forth in paragraphs 3 through 5 above are
subject to the following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfers and obligations or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, regardless of whether enforcement is considered
in a proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought; (iii) the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws; and (v) we express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principal amount thereof which might
be determined to constitute unearned interest thereon.
<PAGE>
We assume for purposes of this opinion that the Company has
been duly organized and is validly existing as a corporation under the laws of
the State of Delaware and has the corporate power and authority to issue and
sell the Securities; that the applicable Indenture has been duly authorized by
all necessary corporate action by the Company; that the Trustee for each
applicable Indenture is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; that the Trustee is duly
qualified to engage in the activities contemplated by the applicable Indenture;
that the applicable Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms; that the
Trustee is in compliance, generally and with respect to acting as Trustee under
the applicable Indenture, with all applicable laws and regulations; and that the
Trustee has the requisite organizational and legal power and authority to
perform its obligations under the applicable Indenture.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may not
be relied upon by you for any other purpose, or furnished to, quoted to, or
relied upon by any other person, firm or corporation for any purpose, without
our prior written consent.
Very truly yours,
/s/ Latham & Watkins
