<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST , 1996
REGISTRATION NO. 333-09401
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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
------------------------
PROTECTION ONE, INC.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 92-1063818
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
------------------------
PROTECTION ONE ALARM MONITORING, INC.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 93-1064579
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
------------------------
METROL SECURITY SERVICES, INC.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0777702
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
------------------------
SONITROL OF ARIZONA, INC.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ARIZONA 86-0371674
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
6011 BRISTOL PARKWAY, CULVER CITY, CALIFORNIA 90230
(310) 338-6930
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL CORPORATE OFFICES)
------------------------
JAMES M. MACKENZIE, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PROTECTION ONE, INC.
PROTECTION ONE ALARM MONITORING, INC.
6011 BRISTOL PARKWAY, CULVER CITY, CALIFORNIA 90230
(310) 338-6930
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
LAURA A. LOFTIN, ESQ.
MITCHELL, SILBERBERG & KNUPP LLP
11377 WEST OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064
(310) 312-2000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
OF THE SECURITIES ACT OF 1933, MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
NOTE
METROL SECURITY SERVICES, INC. ("METROL") AND SONITROL OF ARIZONA, INC.
("SONITROL") ARE SIGNING THIS AMENDMENT NO. 1 SOLELY FOR PURPOSES OF
DEREGISTERING THE RESPECTIVE GUARANTEES OF METROL AND SONITROL PREVIOUSLY
REGISTERED UNDER THIS REGISTRATION STATEMENT, WHICH GUARANTEES ARE HEREBY
DEREGISTERED.
<PAGE> 3
PROSPECTUS
$150,000,000
PROTECTION ONE ALARM MONITORING, INC.
DEBT SECURITIES
PROTECTION ONE, INC.
GUARANTOR
Protection One Alarm Monitoring, Inc., a Delaware corporation
("Monitoring"), may from time to time offer its unsecured debt securities ("Debt
Securities"), consisting of debentures, notes or other unsecured evidences of
indebtedness, including indebtedness convertible into shares of Common Stock,
par value $.01 per share ("Common Stock"), of Protection One, Inc., a Delaware
corporation ("POI") and Monitoring's direct parent, and indebtedness guaranteed
by POI, in each case separately or as units and in any combination. The Debt
Securities will have an aggregate initial offering price not to exceed
$150,000,000 and will be offered on terms determined at the time of offering.
Monitoring may offer and issue from time to time Debt Securities in one or
more series. Debt Securities may be issuable in registered form without coupons
or in bearer form with or without coupons attached. Monitoring will offer Debt
Securities to the public on terms determined by market conditions. Debt
Securities may be sold for U.S. dollars, foreign denominated currency or
currency units; principal of and any interest on Debt Securities may likewise be
payable in U.S. dollars, foreign denominated currency or currency units -- in
each case, as Monitoring specifically designates.
Specific terms of the Debt Securities and Common Stock (collectively, the
"Securities") in respect of which this Prospectus is being delivered will be set
forth in an accompanying Prospectus Supplement ("Prospectus Supplement"),
together with the terms of the offering of the offered Securities and the
initial price and net proceeds to POI and its consolidated subsidiaries
(collectively the "Company") from the sale thereof. The Prospectus Supplement
will set forth with regard to the particular offered Securities, without
limitation, the following: (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, ranking as senior or subordinated debt,
authorized denomination, maturity, rate or rates of interest (or method of
calculation thereof) and dates for payment thereof, any exchangeability,
conversion, redemption, prepayment or sinking fund provisions, and any listing
on a national securities exchange or designation for trading on any automated
quotation system; and (ii) in the case of Common Stock, the number of shares of
Common Stock and the terms of the offering and sale thereof and any listing on a
national securities exchange or designation for trading on any automated
quotation system. The accompanying Prospectus Supplement will also contain
information, where applicable, about certain federal income tax considerations
relating to the Securities covered by the Prospectus Supplement. In addition,
the accompanying Prospectus Supplement will set forth the name of and
compensation to each dealer, underwriter or agent (if any) involved in the sale
of the Securities being offered and the managing underwriters with respect to
any Securities sold to or through underwriters.
SEE "RISK FACTORS" ON PAGE 4 OF THIS PROSPECTUS FOR INFORMATION THAT SHOULD
BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED HEREBY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
Prior to issuance there will have been no market for the Debt Securities,
and there can be no assurance that a secondary market for the Debt Securities
will develop. This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement. Securities may be offered through
dealers, underwriters or agents designated from time to time, as set forth in
the accompanying Prospectus Supplement. Net proceeds to the Company will be the
purchase price in the case of sales to a dealer, the public offering price less
discount in the case of sales to an underwriter or the purchase price less
commission in the case of sales through an agent -- in each case, less other
expenses attributable to issuance and distribution. See "Plan of Distribution"
for possible indemnification arrangements for dealers, underwriters and agents.
------------------------
THE DATE OF THIS PROSPECTUS IS AUGUST 29, 1996.
<PAGE> 4
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SECURITIES BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities. This
Prospectus, which constitutes part of the Registration Statement, does not
contain all of the information set forth in the Registration Statement, certain
portions of which have been omitted in accordance with the Rules and Regulations
of the Commission. Statements contained in this Prospectus as to the contents of
any contract or other document are not necessarily complete, and in each
instance, reference is made to the copy of such contract or document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. For further information with respect to the
Company, reference is made to the Registration Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the offices of the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington D.C. 20549, as well as at the
following regional offices of the Commission: Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such reports, proxy statements and
other information concerning the Company may be inspected at the office of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006. In addition, the Commission maintains a World Wide Web
site on the Internet at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
2
<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Annual Report on Form 10-K of POI, Monitoring and Protection
One Alarm Services, Inc. ("Services") for the fiscal year ended September
30, 1995, as amended;
(b) The Quarterly Reports on Form 10-Q of POI, Monitoring and Services
for the quarters ended December 31, 1995, March 31, 1996 and June 30, 1996;
(c) The Current Reports on Form 8-K of POI and Monitoring reporting
events dated December 18, 1995, May 23, 1996 and June 7, 1996, as amended;
and
(d) The description of the Common Stock contained in POI's
Registration Statement on Form 8-A dated September 8, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the initial filing with the Commission of the
Registration Statement of which this Prospectus is a part and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus. Subject to the
foregoing, all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the request of such person, a copy of any or all
documents incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be directed to Montgomery W.
Cornell, Director of Investor Relations, Protection One, Inc., 3900 S.W. Murray
Blvd., Beaverton, Oregon 97005.
---------------------
"Protection One" is a registered trademark of the Company. All rights are
fully reserved. This Prospectus also contains other trademarks of the Company
and refers to trademarks of other companies.
---------------------
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES
OF SUCH SECURITIES, OTHER SECURITIES OF THE COMPANY OR ANY SECURITIES THE PRICES
OF WHICH MAY BE USED TO DETERMINE PAYMENTS OF SUCH SECURITIES AT LEVELS ABOVE
THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
3
<PAGE> 6
THE COMPANY
The Company provides security alarm monitoring services for residential and
small business subscribers. The Company monitors digital signals arising from
burglaries, fires and other events through security systems installed at
subscribers' premises. Most of these signals are received and processed at the
Company's central monitoring station located in Portland, Oregon. The Company
also sells enhanced security services, patrol and alarm response services and
alarm systems and provides local field repair services through 11 branch
offices. Enhanced security services provided by the Company include two-way
voice communication, supervised monitoring services, pager service, wireless
backup service and extended service protection.
Protection One, Inc. ("POI") and Protection One Alarm Monitoring, Inc.
("Monitoring") were incorporated under the laws of the State of Delaware in
September 1991. The Company's executive offices are located at 6011 Bristol
Parkway, Culver City, California 90230 and its telephone number is (310)
338-6930. Unless the context otherwise requires, the term "Company" means POI
and its consolidated subsidiaries.
RISK FACTORS
Prior to making an investment decision with respect to the Securities
offered hereby, prospective investors should carefully consider the specific
factors set forth under the caption "Risk Factors" in the applicable Prospectus
Supplement pertaining thereto, together with all of the other information
appearing herein or therein, in light of their particular investment objectives
and financial circumstances.
USE OF PROCEEDS
Unless otherwise set forth in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used to repay
indebtedness outstanding under the Company's revolving credit facility (the
"Revolving Credit Facility"). All borrowings under the Revolving Credit Facility
are due in full on January 3, 2000. The interest rate on borrowings under the
Revolving Credit Facility is, at the option of Monitoring, either (a) 1.0% plus
the higher of (i) the Bank Prime Loan Rate announced by the Board of Governors
of the Federal Reserve System or (ii) the Federal Funds Effective Rate, or (b)
LIBOR plus 2.5%. Monitoring used substantially all of the currently outstanding
borrowings under the Revolving Credit Facility to purchase subscriber accounts,
and intends to use future borrowings under the Revolving Credit Facility to add
subscriber accounts, to fund potential joint ventures, co-marketing arrangements
and other strategic alliances and for working capital and general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's earnings were insufficient to cover fixed charges by
approximately $4.0 million, $2.5 million, $9.3 million, $9.4 million, $3.7
million and $7.2 million for the years ended September 30, 1992, 1993, 1994 and
1995, and the six months ended March 31, 1995 and 1996, respectively. For the
purpose of calculating the ratio of earnings to fixed charges, earnings consist
of income before income taxes plus fixed charges. Fixed charges consist of
interest expense, amortization of debt issuance costs and original issue
discount, and the component of rental expense believed by management to be
representative of the interest factor thereon.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt of
Monitoring and will be issued, in the case of Debt Securities that will be
senior debt securities ("Senior Debt Securities"), under an Indenture (as it may
be supplemented from time to time, the "Senior Debt Indenture") to be entered
into between Monitoring and the party to be named as trustee in a Prospectus
Supplement, as trustee under the Senior Indenture (the "Senior Trustee"). In the
case of Debt Securities that will be subordinated debt securities ("Subordinated
Debt Securities"), the Debt Securities will be issued under an Indenture (as it
may be supplemented from time to time, the "Subordinated Debt Indenture")
between Monitoring and State Street
4
<PAGE> 7
Bank and Trust Company, as trustee (the "Subordinated Trustee"). The Senior Debt
Indenture and Subordinated Debt Indenture are sometimes hereinafter referred to
individually as an "Indenture" and collectively as the "Indentures." The Debt
Securities offered by this Prospectus and the accompanying Prospectus Supplement
are referred to herein as the "Offered Debt Securities." The Senior Trustee and
the Subordinated Trustee, respectively, are hereinafter referred to individually
as a "Trustee" and collectively as the "Trustees." The forms of the Senior Debt
Indenture and the Subordinated Debt Indenture are filed as exhibits to the
registration statement of which this Prospectus is a part. See "Available
Information."
The particular terms of each series of Debt Securities, as well as any
modifications or additions to the general terms of the Indenture which may
applicable in the case of such Debt Securities, will be described in the
Prospectus Supplement relating to such Debt Securities. Accordingly, for a
description of the terms of a particular issue of Debt Securities reference must
be made to the Prospectus Supplement relating thereto and to the following
description.
The following summaries of certain provisions of the Indentures and the
Debt Securities do not purport to be complete and such summaries are subject to
the detailed provisions of the applicable Indenture to which reference is hereby
made for a full description of such provisions, including the definition of
certain terms used herein, and for other information regarding the Debt
Securities. Numerical references in parentheses below are to sections in the
applicable Indenture. Wherever particular sections or defined terms of the
applicable Indenture are referred to, such sections or defined terms are
incorporated herein by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for the provisions relating to subordination and
Monitoring's negative pledge. See "Subordinated Debt" and "Certain Covenants."
GENERAL
Neither of the Indentures limits the amount of additional indebtedness that
Monitoring or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of Monitoring. Certain of the
assets of Monitoring are owned by its subsidiaries. Therefore, Monitoring's
rights and the rights of its creditors, including holders of Debt Securities, to
participate in the assets of any subsidiary upon such subsidiary's liquidation
or recapitalization will be subject to the prior claims of such subsidiary's
creditors, except to the extent that Monitoring may itself be a creditor with
recognized claims against the subsidiary.
The Indentures provide that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in foreign currencies
or units based on or relating to foreign currencies, including European Currency
Units. Special United States federal income tax considerations applicable to any
Debt Securities so denominated are described in the relevant Prospectus
Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Debt Securities): (i) classification as senior or
subordinated Debt Securities, the specific designation, aggregate principal
amount, purchase price and denomination; (ii) currency or units based on or
relating to currencies in which such Debt Securities are denominated and/or in
which principal (and premium, if any) and/or interest will or may be payable;
(iii) any date of maturity; (iv) interest rate or rates (or the method by which
such rate or rates will be determined), if any; (v) the dates on which any such
interest will be payable; (vi) the place or places where the principal of,
premium, if any, and interest, if any, on the Offered Debt Securities will be
payable; (vii) any repayment, redemption, prepayment or sinking fund provisions;
(viii) whether the Offered Debt Securities will be issuable in registered form
or bearer form ("Bearer Securities") or both and, if Bearer Securities are
issuable, any restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Bearer Securities; (ix) the terms, if
any, on which such Debt Securities may be converted into or exchanged for stock
or other securities of POI or other entities, any specific terms relating to the
adjustment thereof and the period during which such Debt Securities may be so
converted or exchanged; (x) any applicable United States federal income tax
consequences, including whether and under what circumstances Monitoring will pay
additional amounts on Offered Debt Securities held by a person who is not
5
<PAGE> 8
a United States person (as defined herein) in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether Monitoring will
have the option to redeem such Debt Securities rather than pay such additional
amounts; and (xi) any other specific terms of the Offered Debt Securities,
including any additional events of default or covenants provided for with
respect to such Debt Securities, and any terms which may be required by or
advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the applicable Indenture. Debt Securities in bearer form
and the coupons, if any, appertaining thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, securities or baskets of securities, commodity prices or
indices. Holders of such Debt Securities may receive a payment of principal on
any principal payment date, or a payment of interest on any interest payment
date, that is greater than or less than the amount of principal or interest
otherwise payable on such dates, depending upon the value on such dates of the
applicable currency, security or basket of securities, commodity or index.
Information as to the methods for determining the amount of principal or
interest payable on any date, the currencies, securities or baskets of
securities, commodities or indices to which the amount payable on such date is
linked and certain additional tax considerations will be set forth in the
applicable Prospectus Supplement.
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Securities (a "Registered Global Security") that
will be deposited with a depositary (a "Debt Depositary") or with a nominee for
a Debt Depositary identified in the Prospectus Supplement relating to such
series and registered in the name of such Debt Depositary or nominee thereof. In
such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Securities. Unless and until it is
exchanged in whole for Debt Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the Debt
Depositary for such Registered Global Security to a nominee of such Debt
Depositary or by a nominee of such Debt Depositary to such Debt Depositary or
another nominee of such Debt Depositary or by such Debt Depositary or any such
nominee to a successor of such Debt Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
Monitoring anticipates that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Debt Depositary for such
Registered Global Security ("participants") or persons that may hold interests
through participants. Upon the issuance of a Registered Global Security, the
Debt Depositary for such Registered Global Security will credit, on its
book-entry registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by such participants. The accounts
to be credited will be designated by any dealers, underwriters or agents
participating in the distribution of such Debt Securities.
6
<PAGE> 9
Ownership of beneficial interests in such Registered Global Security will be
shown on, and the transfer of such ownership interests will be effected only
through, records maintained by the Debt Depositary for such Registered Global
Security (with respect to interests of participants) and on the records of
participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to own, transfer or pledge
beneficial interests in Registered Global Securities.
So long as the Debt Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such Debt
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the applicable Indenture.
Accordingly, each person owning a beneficial interest in a Registered Global
Security must rely on the procedures of the Debt Depositary for such Registered
Global Security and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder under the applicable Indenture. Monitoring understands that
under existing industry practices, if it requests any action of holders or if an
owner of a beneficial interest in a Registered Global Security desires to give
or take any action which a holder is entitled to give or take under the
applicable Indenture, the Debt Depositary for such Registered Global Security
would authorize the participants holding the relevant beneficial interests to
give or take such action, and such participants would authorize beneficial
owners owning through such participants to give or take such action or would
otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a Debt
Depositary or its nominee will be made to such Debt Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global Security.
None of Monitoring, the Trustees or any other agent of Monitoring or agent of
the Trustees will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Monitoring expects that the Debt Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered Global
Security as shown on the records of such Debt Depositary. Monitoring also
expects that payments by participants to owners of beneficial interests in such
Registered Global Security held through such participants will be governed by
standing customer instructions and customary practices, as is now the case with
the securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such participants.
If the Debt Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Debt
Depositary or ceases to be a clearing agency registered under the Exchange Act,
and a successor Debt Depositary registered as a clearing agency under the
Exchange Act is not appointed by Monitoring within 90 days, Monitoring will
issue such Debt Securities in definitive form in exchange for such Registered
Global Security. In addition, Monitoring may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Debt Depositary
shall instruct the relevant Trustee. It is expected that such instructions will
be based upon directions received by the Debt Depositary from participants with
respect to ownership of beneficial interests in such Registered Global Security.
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The Debt Securities of a series may also be issued in the form of one or
more bearer global Securities (a "Bearer Global Security") that will be
deposited with a common depositary for the Euroclear System currently operated
by Morgan Guaranty Trust Company of New York, Brussels Office, or its successor
as operator of the Euroclear System ("Euroclear") and Cedel Bank, societe
anonyme or its successor ("Cedel"), or with a nominee for such depositary
identified in the Prospectus Supplement relating to such series. The specific
terms and procedures, including the specific terms of the depositary
arrangement, with respect to any portion of a series of Debt Securities to be
represented by a Bearer Global Security will be described in the Prospectus
Supplement relating to such series.
SENIOR DEBT
The Debt Securities and, in the case of Bearer Securities, any coupons
appertaining thereto (the "Coupons"), that will be Senior Debt Securities will
be issued under the Senior Debt Indenture and will rank pari passu with all
other unsecured and unsubordinated debt of Monitoring.
SUBORDINATED DEBT
Each Series of Debt Securities and Coupons that will be Subordinated Debt
Securities will be issued under the Subordinated Debt Indenture and will be
subordinate and junior in right of payment, to the extent and in the manner
provided in an indenture supplemental to the Subordinated Debt Indenture and as
described in the Prospectus Supplement relating to such series, to all "Senior
Indebtedness" (as defined in such supplemental indenture and as described in
such Prospectus Supplement) of Monitoring.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
GUARANTEES
Monitoring's obligations under the Debt Securities will be fully and
unconditionally guaranteed by POI and, under certain circumstances, by certain
Subsidiaries (as defined in the Indentures) of POI that are Restricted
Subsidiaries (as defined herein) (so long as they remain Subsidiaries of POI;
each, a "Subsidiary Guarantor", and together with POI, the "Guarantors"). Each
guarantee ("Note Guarantee") of Monitoring's obligations under Senior Debt
Securities will constitute part of the senior debt of each of the Guarantors and
will rank pari passu with all other unsecured and unsubordinated debt of each
such Guarantor. Each Note Guarantee with respect to Subordinated Debt Securities
will be subordinated to the "Guarantor Senior Indebtedness" (as defined in the
supplemental indenture to the Subordinated Debt Indenture and described in the
Prospectus Supplement applicable to the series of Subordinated Debt Securities
to which such Note Guarantee relates) of the issuer of such Note Guarantee on
the same basis as provided above with respect to the subordination of
Subordinated Debt Securities to Senior Indebtedness of Monitoring. (Subordinated
Debt Indenture, 14.01) POI has no material assets other than all the outstanding
capital stock of Monitoring, which has been pledged to secure POI's guarantee of
the obligations of Monitoring under the Revolving Credit Facility. As of June
30, 1996, POI did not have any Indebtedness outstanding.
The Indentures provide that any new Subsidiary of Monitoring with assets in
excess of $2.0 million that becomes a Restricted Subsidiary after the Indenture
is executed shall become a Guarantor (i) not later than 30 days after becoming a
Restricted Subsidiary if such Subsidiary is a Significant Subsidiary and (ii)
not later than 180 days after such Subsidiary becomes a Restricted Subsidiary if
such Restricted Subsidiary is not a Significant Subsidiary. (Senior Debt
Indenture, Section 3.08; Subordinated Debt Indenture, Section 3.07)
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of POI or Monitoring that, together with its Subsidiaries, (i) for
the most recent fiscal year of POI, accounted (or, on a pro forma basis, would
have accounted) for more than 10% of the consolidated revenues of POI and its
Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the owner
(or, on a pro forma basis, would have been the owner) of more than 10% of the
consolidated assets of POI and its Restricted Subsidiaries, all as set forth on
the most recently available consolidated financial statements of POI for such
fiscal year. (Indentures, Section 1.01)
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The Indentures define "Restricted Subsidiary" to mean Monitoring and any
Subsidiary of Monitoring that is not designated an "Unrestricted Subsidiary" by
POI. "Unrestricted Subsidiary" is defined by the Indentures to mean (i) any
Subsidiary of POI (other than Monitoring) that is not also a Subsidiary of
Monitoring, (ii) any Subsidiary of Monitoring that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of POI
in the manner provided below and (iii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors of POI may designate any Subsidiary of
Monitoring (including any newly acquired or newly formed Subsidiary of
Monitoring) to be an Unrestricted Subsidiary unless such Subsidiary owns any
capital stock of, or owns or holds any pledge, lien or other encumbrance on any
property or assets of, POI or any Restricted Subsidiary; provided that either
(A) the Subsidiary to be so designated has total assets of $1,000 or less or (B)
if such Subsidiary has assets greater than $1,000, such designation would be
permitted under the Indenture dated as of May 17, 1995 (the "Discount Notes
Indenture") between Monitoring, POI, as Guarantor, and State Street Bank and
Trust Company, as Trustee, as then in effect. If at the time in question the
notes issued pursuant to the Discount Notes Indenture (the "Discount Notes")
have been paid in full or the Discount Notes Indenture shall have been otherwise
discharged, no Subsidiary with total assets of more than $1,000 may be
designated an Unrestricted Subsidiary unless such Subsidiary could have been
designated an Unrestricted Subsidiary under the Discount Notes Indenture as in
effect at the time the Discount Notes were repaid in full or the Discount Notes
Indenture was otherwise discharged. The Board of Directors of POI may designate
any Unrestricted Subsidiary (other than a Subsidiary of POI that is not a
Subsidiary of Monitoring) to be a Restricted Subsidiary; provided that
immediately after giving effect to such designation no Default or Event of
Default shall have occurred and be continuing. (Indentures, Section 1.01)
The Indentures also provide that if all or substantially all of the assets
of any Subsidiary Guarantor or all of the capital stock of any Subsidiary
Guarantor is sold (including by issuance or otherwise) by Monitoring or any of
its Subsidiaries in a transaction constituting an Asset Sale (as defined in the
Indentures) that does not otherwise violate the particular Indenture, then such
Subsidiary Guarantor (in the event of a sale or other disposition of all of the
capital stock of such Subsidiary Guarantor) or the corporation acquiring such
assets (in the event of a sale or other disposition of all or substantially all
of the assets of such Subsidiary Guarantor) shall be released and discharged of
its obligations under the Note Guarantee. (Senior Debt Indenture, Section 12.03;
Subordinated Debt Indenture, Section 13.03)
POI is a holding company with no operations of its own and no significant
assets other than its ownership of the capital stock of Monitoring. POI will,
therefore, be dependent upon the receipt of dividends or other distributions
from Monitoring to fund any obligations that it incurs, including obligations
under the Note Guarantee. The Indentures and the Revolving Credit Facility do
not, however, permit distributions from Monitoring to POI, other than for
certain specified purposes. Accordingly, if Monitoring should at any time be
unable to pay interest on or principal of the Debt Securities, it is unlikely
that it will be permitted to distribute to POI the funds necessary to enable POI
to meet its obligations under the Note Guarantee.
CERTAIN COVENANTS
Negative Pledge. The Senior Debt Indenture provides that POI will not, and
will not permit Monitoring or any Subsidiary to, create, assume, incur or
guarantee any indebtedness for borrowed money secured by a pledge, lien or other
encumbrance (except for certain liens specifically permitted by the Senior Debt
Indenture) on the shares of Capital Stock (as defined in the Senior Debt
Indenture) or Indebtedness of any Subsidiary or on any of its assets or
properties, without making effective provision whereby the Debt Securities
issued under such Indenture will be secured equally and ratably with such
secured indebtedness. (Senior Debt Indenture, Section 3.07)
Merger, Consolidation, Sale, Lease or Conveyance. Each Indenture provides
that neither Monitoring nor any Guarantor will merge or consolidate with any
other corporation or sell, lease or convey all or substantially all its assets
to any person, unless Monitoring or such Guarantor, as the case may be, shall be
the continuing corporation, or the successor corporation or person that acquires
all or substantially all the assets of Monitoring or such Guarantor shall be a
corporation organized under the laws of the United States or a state thereof or
the District of Columbia and shall expressly assume all obligations of
Monitoring or such
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Guarantor, as the case may be, under such Indenture and the Debt Securities and
Note Guarantee issued thereunder, and immediately after such merger,
consolidation, sale, lease or conveyance, Monitoring or such Guarantor, as the
case may be, such person or such successor corporation shall not be in default
in the performance of the covenants and conditions of such Indenture to be
performed or observed by Monitoring or such Guarantor, as the case may be.
(Indentures, Section 9.01) This covenant would not apply to a recapitalization
transaction, a change of control of Monitoring or POI or a highly leveraged
transaction unless such transactions or change of control were structured to
include a merger or consolidation or sale, lease or conveyance of all or
substantially all of the assets of Monitoring or POI, as the case may be. In
addition, Monitoring or any other Restricted Subsidiary may enter into any of
the transactions described in this paragraph with a wholly owned Restricted
Subsidiary that is a Guarantor and that (in the case of any wholly owned
Restricted Subsidiary other than Monitoring) has a positive net worth; provided
that in connection with any such merger or consolidation, no consideration
(other than common stock of the surviving entity, Monitoring or the Guarantor)
shall be issued or distributed to the stockholders of Monitoring or the
Guarantor.
Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other provisions
in the Indentures providing for a put or increased interest or otherwise that
would afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of Monitoring or a highly
leveraged transaction.
EVENTS OF DEFAULT
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (a) default in
payment of any principal of the Debt Securities of such series, either at
maturity (or upon any redemption), by declaration or otherwise; (b) default for
30 days in payment of any interest on any Debt Securities of such series; (c)
default for 60 days after written notice in the observance or performance of any
other covenant or agreement in the Debt Securities of such series or such
Indenture other than a covenant included in such Indenture solely for the
benefit of a series of Debt Securities other than such series; (d) certain
events of bankruptcy, insolvency or reorganization; (e) failure by Monitoring or
any Guarantor to make any payment at maturity, including any applicable grace
period, in respect of Indebtedness (as defined below) in an outstanding
principal amount in excess of $5.0 million in the aggregate for all such issues
of all such Persons and continuance of such failure for a period of 30 days
after written notice thereof to Monitoring by the Trustee, or to Monitoring and
the Trustee by the holders of not less than 25% in principal amount of such
outstanding Debt Securities (treated as one class) issued under such Indenture;
or (f) default with respect to any Indebtedness of Monitoring, any Guarantor or
any Subsidiary, which default results in the acceleration of Indebtedness in an
amount in excess of $5.0 million in the aggregate for all such issues of all
such Persons without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled for a period of 30
days after written notice thereof to Monitoring by the Trustee, or to Monitoring
and the Trustee by the holders of not less than 25% in principal amount of such
outstanding Debt Securities (treated as one class) issued under such Indenture;
provided, however, that if any such failure, default or acceleration referred to
in clause (e) or clause (f) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default by reason thereof shall be deemed likewise
to have been thereupon cured. Unless otherwise defined in a supplemental
indenture with respect to a particular series of Securities and Coupons, if any,
and described in the applicable Prospectus Supplement, the term "Indebtedness"
means obligations (other than nonrecourse obligations or the Debt Securities of
such series issued under the applicable Indenture) of, or guaranteed or assumed
by, Monitoring, any Guarantor or any Subsidiary for borrowed money or evidenced
by bonds, debentures, notes or other similar instruments. (Indentures, Sections
1.01 and 5.01)
Each Indenture provides that (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of Debt
Securities issued under such Indenture or due to the default in the performance
or breach of any other covenant or warranty of Monitoring or any Guarantor
applicable to the Debt Securities of such series but not applicable to all
outstanding Debt Securities issued under such Indenture shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
principal amount of such Debt Securities of each such affected series (treated
as one class) issued under such
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Indenture and then outstanding may then declare the principal of all Debt
Securities of each such affected series and interest accrued thereon to be due
and payable immediately; and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in such Indenture
applicable to all outstanding Debt Securities issued under such Indenture and
then outstanding (other than those with respect to certain events of bankruptcy,
insolvency or reorganization of Monitoring or any Guarantor) shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all Debt Securities issued under such Indenture and then
outstanding (treated as one class) may declare the principal of all such Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of (or premium,
if any) or interest on such Debt Securities) by the holders of a majority in
principal amount of the Debt Securities of all such affected series then
outstanding. In the case of certain events of bankruptcy, insolvency or
reorganization of Monitoring or any Guarantor, the principal of, premium, if
any, and accrued interest on all Debt Securities then outstanding shall
automatically become and be immediately due and payable. (Indentures, Sections
5.01 and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of care,
to be indemnified by the holders of Debt Securities (treated as one class)
issued under such Indenture before proceeding to exercise any right or power
under such Indenture at the request of such holders. (Indentures, Section 6.02)
Subject to such provisions in each Indenture for the indemnification of the
Trustee and certain other limitations, the holders of a majority in principal
amount of the outstanding Debt Securities (treated as one class) issued under
such Indenture may 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. (Indentures, Section 5.09)
Each Indenture provides that no holder of Debt Securities issued under such
Indenture may institute any action against Monitoring under such Indenture
(except actions for payment of overdue principal or interest) unless such holder
previously shall have given to the Trustee written notice of default and
continuance thereof and unless the holders of not less than 25% in principal
amount of the Debt Securities of each affected series (treated as one class)
issued under such Indenture and then outstanding shall have requested the
Trustee to institute such action and shall have offered the Trustee reasonable
indemnity, the Trustee shall not have instituted such action within 60 days of
such request and the Trustee shall not have received direction inconsistent with
such written request by the holders of a majority in principal amount of the
Debt Securities of each affected series (treated as one class) issued under such
Indenture and then outstanding. (Indentures, Sections 5.06 and 5.09)
Each Indenture contains a covenant that Monitoring will file annually with
the Trustee a certificate of no default or a certificate specifying any default
that exists. (Indentures, Section 3.05)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Unless otherwise provided in the applicable Prospectus Supplement,
Monitoring can discharge or defease its obligations under an Indenture as set
forth below. (Indentures, Section 10.01)
Under terms satisfactory to the Trustee, Monitoring may discharge certain
obligations to holders of any series of Debt Securities issued under such
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee cash or, in the case of Debt Securities
payable only in U.S. dollars, U.S. Government Obligations (as defined in such
Indenture), as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of and interest on such Debt
Securities.
Monitoring may also discharge any and all of the obligations to holders of
any series of Debt Securities issued under an Indenture at any time
("defeasance"), but may not thereby avoid any duty to register the transfer or
exchange of such series of Debt Securities, to replace any mutilated, destroyed,
lost, or stolen Debt Securities of such series or to maintain an office or
agency in respect of such series of Debt Securities. Under terms satisfactory to
the relevant Trustee, Monitoring may instead be released with respect to any
outstanding
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series of Debt Securities issued under the relevant Indenture from the
obligations imposed by Sections 3.07 (in the case of the Senior Debt Indenture)
and 9.01 (which Sections contain the covenants described above limiting liens
and consolidations, mergers, asset sales and leases), and elect not to comply
with such Sections without creating an Event of Default ("covenant defeasance").
Defeasance or covenant defeasance may be effected only if, among other things:
(i) Monitoring irrevocably deposits with the relevant Trustee cash or, in the
case of Debt Securities payable only in U.S. dollars, U.S. Government
Obligations, as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of and interest on all outstanding
Debt Securities of such series issued under such Indenture; (ii) Monitoring
delivers to the relevant Trustee an opinion of counsel to the effect that the
holders of such series of Debt Securities will not recognize income, gain or
loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and that defeasance or covenant defeasance
will not otherwise alter such holders' United States federal income tax
treatment of principal and interest payments on such series of Debt Securities
(in the case of a defeasance, such opinion must be based on a ruling of the
Internal Revenue Service or a change in United States federal income tax law
occurring after the date of such Indenture, since such a result would not occur
under current tax law); and (iii) in the case of a series of Subordinated Debt
Securities, any requirements set forth in the Prospectus Supplement applicable
to such series of Subordinated Debt Securities are satisfied.
MODIFICATION OF THE INDENTURES
Each Indenture provides that Monitoring and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of Monitoring or any Guarantor, (c) add covenants
for the protection of the holders of Debt Securities, (d) cure any ambiguity or
correct any inconsistency in such Indenture or in any supplemental indenture,
provided that no such action adversely affects the interests of any holder of
Debt Securities in any material respect, (e) establish the forms or terms of
Debt Securities of any series, (f) make any change that does not adversely
affect the rights under such Indenture of any holder of Debt Securities
thereunder, (g) add any Note Guarantee or release any Note Guarantee pursuant to
the provisions thereof, (h) release any Note Guarantee from a Subsidiary
Guarantor that has ceased to be a Subsidiary of Monitoring, (i) evidence the
acceptance of appointment by a successor trustee and (j) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended. (Indentures,
Section 8.01)
Each Indenture also contains provisions permitting Monitoring and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of all series issued under such Indenture
then outstanding and affected (voting as one class), to add any provisions to,
or change in any manner or eliminate any of the provisions of, such Indenture or
modify in any manner the rights of the holders of the Debt Securities of each
series so affected; provided that Monitoring and the Trustee may not, without
the consent of the holder of each outstanding Debt Security affected thereby,
(a) extend the final maturity of the principal of any Debt Security, or reduce
the principal amount thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or change
the currency in which the principal thereof (including any amount in respect of
original issue discount), premium, if any, or interest thereon is payable or
reduce the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy or alter certain provisions of such
Indenture relating to the Debt Securities issued thereunder not denominated in
U.S. dollars or impair the right to institute suit for the enforcement of any
payment on any Debt Security when due or (b) reduce the aforesaid percentage in
principal amount of Debt Securities of any series issued under such Indenture,
the consent of the holders of which is required for any such modification.
(Indentures, Section 8.02)
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal income tax laws and regulations,
Bearer Securities (including Bearer Securities in global form) will not be
offered, sold, resold or delivered, directly or indirectly, in the United States
or its possessions or to United States persons (as defined below), except as
otherwise permitted
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by United States Treasury Regulations Section 1.163-5(c)(2)(i)(D). Any
underwriters, agents or dealers participating in the offerings of Bearer
Securities, directly or indirectly, must agree that they will not, in connection
with the original issuance of any Bearer Securities or during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) (the "restricted period"), offer, sell, resell or
deliver, directly or indirectly, any Bearer Securities in the United States or
its possessions or to United States persons (other than as permitted by the
applicable Treasury Regulations described above). In addition, any such
underwriters, agents or dealers must have procedures reasonably designed to
ensure that its employees or agents who are directly engaged in selling Bearer
Securities are aware of the above restrictions on the offering, sale, resale or
delivery of Bearer Securities. Moreover, Bearer Securities (other than temporary
global Debt Securities and Bearer Securities that satisfy the requirements of
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(iii)) and any
Coupons appertaining thereto will not be delivered in definitive form unless
Monitoring has received a signed certificate in writing (or an electronic
certificate described in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date such Bearer Security (i)
is owned by a person that is not a United States person, (ii) is owned by a
United States person that (a) is a foreign branch of a United States financial
institution (as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account or
for resale, or (b) is acquiring such Bearer Security through a foreign branch of
a United States financial institution and who holds the Bearer Security through
such financial institution through such date (and in either case (a) or (b)
above, each such United States financial institution agrees, on its own behalf
or through its agent, that Monitoring may be advised that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder) or (iii) is owned by a
United States or foreign financial institution for the purposes of resale during
the restricted period and, in addition, if the owner of such Bearer Security is
a United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or clause (ii) above), such
financial institution certifies that it has not acquired the Bearer Security for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
Bearer Securities (other than temporary global Debt Securities) and any
Coupons appertaining thereto will bear a legend substantially to the following
effect: "Any United States person who holds this obligation will be subject to
limitations under the United States federal income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the United States
Internal Revenue Code." The sections referred to in such legend provide that,
with certain exceptions, a United States person will not be permitted to deduct
any loss and will not be eligible for capital gain treatment with respect to any
gain, realized on the sale, exchange or redemption of such Bearer Security or
Coupon.
As used herein, "United States person" means a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of Protection One, Inc. consists of 24,000,000
shares of Common Stock, $.01 par value per share, and 5,000,000 shares of
Preferred Stock, $.10 par value per share. As of July 31, 1996, there were
12,728,175 shares of Common Stock and no shares of Preferred Stock outstanding.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share held of
record on all matters to be voted on by the stockholders. The holders of Common
Stock do not possess cumulative voting rights, and members of the Board of
Directors of POI are elected by a plurality. The holders of Common Stock are
entitled to receive ratably such dividends as may be declared from time to time
by the Board of Directors out of funds legally available therefor, subject to
the rights of the holders of any series of Preferred Stock then outstanding. In
the event of the liquidation, dissolution or winding up of POI, the holders of
Common Stock are entitled to share ratably in all assets remaining after payment
of liabilities to creditors, subject to prior liquidation rights of Preferred
Stock, if any, then outstanding. The Common Stock has no preemptive rights,
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conversion rights or other subscription rights. There are no redemption or
sinking funds provisions applicable to the Common Stock. All outstanding shares
of Common Stock are, and the shares of Common Stock issued upon conversion of
any Debt Securities will be, fully paid and non-assessable.
The Transfer Agent and Registrar for the Common Stock is, as of the date of
this Prospectus, Wells Fargo Bank. Effective as of September 8, 1996, the
Transfer Agent and Registrar for the Common Stock will be ChaseMellon
Shareholder Services.
PREFERRED STOCK
The Amended and Restated Certificate of Incorporation of POI authorizes
5,000,000 shares of Preferred Stock. The Board of Directors has the authority to
issue the Preferred Stock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
dividend rates, conversion rights, voting rights, terms of redemption,
redemption prices, liquidation preferences and the number of shares constituting
any series or the designation of such series, without further vote or action by
the stockholders. The issuance of Preferred Stock may have the effect of
delaying, deferring or preventing a change in control of the Company without
further action by the stockholders and may adversely affect the voting and other
rights of the holders of Common Stock, including the loss of voting control to
others.
DELAWARE ANTI-TAKEOVER LAW
Each of POI and Monitoring is a Delaware corporation and as such is subject
to Section 203 of the Delaware General Corporation Law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a "business
combination" (as defined below) with an "interested stockholder" (as defined
below) for a period of three years following the date such stockholder became an
"interested stockholder," unless: (i) prior to such date, the board of directors
of the corporation approves either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder; (ii) upon
consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced, excluding voting stock owned by directors who are also officers of
the corporation or held in employee benefit plans that do not provide employees
a confidential right to determine whether to tender (or how to vote) stock held
by the plan; or (iii) on or subsequent to such date the business combination is
approved by the board of directors of the corporation and by the holders of
two-thirds of the outstanding voting stock of the corporation not owned by the
interested stockholder. A "business combination" includes certain mergers, stock
or asset sales and other transactions resulting in a financial benefit to the
interested stockholder. An "interested stockholder" is generally a person who,
together with affiliates and associates, owns (or within three years did own)
15% or more of the corporation's voting stock.
AMENDED STOCKHOLDERS' AGREEMENT
POI, the original holders of the 5,760,839 shares of Common Stock
outstanding prior to the initial public offering of the Common Stock (the
"Initial Public Offering"), the holders of warrants issued to two prior lenders
to the Company (the "Bank Warrants") and four executive officers of POI are
party to an Amended and Restated Stockholders' Agreement dated as of August 15,
1994 (the "Amended Stockholders' Agreement"). Pursuant to the Amended
Stockholders' Agreement, the holders of a majority of the shares of Common Stock
that were issued to six original investors in connection with the Initial Public
Offering have the right to demand on two occasions that POI register such shares
of Common Stock under the Securities Act for resales by those stockholders. The
Amended Stockholders' Agreement further provides that, subject to certain
limitations and exclusions, in the event that POI proposes to register under the
Securities Act shares of Common Stock in connection with an underwritten public
offering of those shares, upon the request of the other parties to the Amended
Stockholders' Agreement POI will include in the applicable registration
statement the shares of Common Stock owned by those securityholders (or that
those securityholders had the right to acquire) at the time of the Initial
Public Offering. Those parties to the Amended Stockholders' Agreement who hold
the Bank Warrants or who are affiliates of POI also are entitled under the
Amended Stockholders' Agreement to certain piggyback registration rights with
respect to those securities (or, in the case of affiliates, the shares of Common
Stock owned by them at the time of the Initial Public Offering) in the
14
<PAGE> 17
event of certain non-underwritten offerings of Common Stock registered by POI.
The Amended Stockholders' Agreement will terminate on September 16, 2001 unless
otherwise extended or earlier terminated by a written instrument signed by each
party thereto.
PLAN OF DISTRIBUTION
Monitoring may sell the Debt Securities being offered hereby through
agents, underwriters, dealers or remarketing firms.
Offers to purchase Debt Securities may be solicited by agents designated by
Monitoring from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by Monitoring to such agent set
forth, in the Prospectus Supplement. Any such agent will be acting on a
reasonable efforts basis for the period of its appointment or, if indicated in
the applicable Prospectus Supplement, on a firm commitment basis. Agents may be
entitled under agreements which may be entered into with Monitoring to
indemnification by Monitoring against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for Monitoring or POI in the ordinary
course of business.
If any underwriters are utilized in the sale of the Debt Securities in
respect of which this Prospectus is delivered, Monitoring will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales of the Debt Securities in respect of which this Prospectus is delivered
to the public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by Monitoring against certain liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for Monitoring or POI in the ordinary
course of business.
If a dealer is utilized in the sale of the Debt Securities in respect of
which the Prospectus is delivered, Monitoring will sell such Debt Securities to
the dealer, as principal. The dealer may then resell such Debt Securities to the
public at varying prices to be determined by such dealer at the time of resale.
Dealers may be entitled to indemnification by Monitoring against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for Monitoring or
POI in the ordinary course of business.
Debt Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with their terms, by one or more firms ("remarketing firms"), acting
as principals for their own accounts or as agents for Monitoring. Any
remarketing firm will be identified and the terms of its agreement, if any, with
Monitoring and its compensation will be described in the Prospectus Supplement.
Remarketing firms may be entitled under agreements which may be entered into
with Monitoring to indemnification by Monitoring against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for Monitoring or
POI in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, Monitoring will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase Offered Debt Securities from Monitoring at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
15
<PAGE> 18
LEGAL MATTERS
Mitchell, Silberberg & Knupp LLP has rendered an opinion with respect to
the validity of the issuance of the Securities offered pursuant to this
Prospectus. Certain legal matters in connection with offerings made by this
Prospectus may be passed upon for any underwriters, dealers or agents by counsel
named in the Prospectus Supplement.
EXPERTS
The consolidated balance sheets of Protection One, Inc. and subsidiaries as
of September 30, 1995 and 1994 and the related consolidated statements of
operations, cash flows and changes in stockholders' equity (deficit) for each of
the three years in the period ended September 30, 1995 incorporated by reference
in this Prospectus, have been incorporated herein in reliance on the report,
which includes an explanatory paragraph with respect to a change in method of
accounting for certain subscriber account acquisition and transition costs, of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
The consolidated balance sheets of Metrol Security Services, Inc. and
subsidiaries as of December 31, 1995 and 1994 and the related consolidated
statements of operations, stockholders' deficiencies and cash flows for each of
the three years in the period ended December 31, 1995, incorporated by reference
in this Prospectus have been incorporated herein in reliance on the report of
KPMG Peat Marwick LLP, independent accountants, given on the authority of that
firm as experts in accounting and auditing.
16
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.+
<TABLE>
<CAPTION>
NAME OF EXPENSE
-----------------------------------------------------------------
<S> <C>
SEC Registration Fee............................................. $ 51,725
Blue Sky Fees and Expenses....................................... 20,000
NYSE Listing Fees................................................ 3,500
NASD Fees........................................................ 15,500
NASDAQ Quotation Fees............................................ 5,000
Rating Agency Fees............................................... 80,000
Printing and Engraving Expenses.................................. 100,000
Legal Fees and Expenses.......................................... 200,000
Accounting Fees and Expenses..................................... 100,000
Fees and Expenses of Transfer Agent, Trustee and Depositary...... 10,000
Miscellaneous.................................................... 164,275
----------
Total....................................................... $ 750,000
==========
</TABLE>
- ---------------
+ Expenses are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made party by reason of such position, if such person shall
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The certificate of incorporation of Protection One, Inc. ("POI") provides
that such Registrant shall indemnify its directors and officers to the fullest
extent permitted by the Delaware General Corporation Law. Each of the
certificates of incorporation of POI and Protection One Alarm Monitoring, Inc.
("Monitoring") also provides that no director shall be liable to such Registrant
or its stockholders for monetary damages for breach of his fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to such Registrant or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for
any transaction in which the director derived an improper personal benefit.
The By-laws of POI and Monitoring each contain provisions to the effect
that each director, officer and employee of such Registrant shall be indemnified
by such Registrant against liabilities and expenses in connection with any legal
proceedings to which he may be made a party or with which he may become involved
or threatened by reason of having been an officer, director or employee of the
company or of any other organization at the request of the company. The
provisions include indemnification with respect to matters covered by a
settlement. Under Delaware law, any such indemnification shall be made only if
the Board of Directors determines by a majority vote of a quorum consisting of
disinterested directors (or, if such quorum is not obtainable, or if the Board
of Directors directs, by independent legal counsel) or by stockholders, that
indemnification is proper in the circumstances because the person making
indemnification has met the applicable standards of conduct. In addition, it
must be determined that the director, officer or employee acted in good faith
with the reasonable belief that his action was in or not opposed to the best
II-1
<PAGE> 20
interests of the company, and, with respect to any criminal action or
proceeding, that he had no reasonable cause to believe his conduct was unlawful.
George A. Weinstock is the Executive Vice President and Assistant Secretary
of POI. Mr. Weinstock's employment agreement with Monitoring provides for
indemnification in the event Mr. Weinstock is made or is threatened to be made a
party to any action by reason of the fact that he is or was a director, officer
or employee of Monitoring and POI.
The foregoing summaries of portions of the Registrants' charter documents
and bylaws are qualified in their entirety by reference to the relevant portions
of such documents filed as exhibits to this Registration Statement.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------------------------------------------------------------------
<C> <S>
3.1 Fifth Amended and Restated Certificate of Incorporation of Protection One, Inc.
("POI")(1)
3.2 Certificate of Incorporation of Protection One Alarm Monitoring, Inc.
("Monitoring"), as amended
3.3 By-laws of POI(2)
3.4 By-laws of Monitoring(3)
4.1 Form of Indenture between Monitoring, POI and , Trustee, with respect to
Senior Debt Securities ("Senior Debt Indenture")
4.2 Indenture between Monitoring, POI and State Street Bank and Trust Company,
Trustee, with respect to Subordinated Debt Securities ("Subordinated Debt
Indenture")
5.1 Opinion of Mitchell, Silberberg & Knupp LLP
23.1 Consent of Coopers & Lybrand L.L.P.+
23.2 Consent of KPMG Peat Marwick LLP(4)
23.3 Consent of Mitchell, Silberberg & Knupp LLP (included in Exhibit 5.1)
24.1 Power of attorney (included on signature page)+
25.1 Statement of Eligibility on Form T-1 of State Street Bank and Trust Company
</TABLE>
- ---------------
(1) Incorporated by reference in Exhibit 3.1 to the Annual Report on Form 10-K
for the year ended September 30, 1994 filed by POI, Monitoring and
Protection One Alarm Services, Inc. ("Services") (the "Fiscal 1994 Form
10-K").
(2) Incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form
10-Q for the quarter ended March 31, 1996 filed by POI, Monitoring and
Services.
(3) Incorporated by reference to Exhibit 3.2 to the Fiscal 1994 Form 10-K.
(4) Incorporated by reference to Exhibit 5.1 to the Current Report on Form 8-K
of POI and Monitoring dated June 7, 1996, as amended.
+ Previously filed.
ITEM 17. UNDERTAKINGS.
Each Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
II-2
<PAGE> 21
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at the
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.
Each Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of such Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of a Registrant
pursuant to the indemnification provisions described herein, or otherwise, such
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant
of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, such Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Each of the undersigned Registrants hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each 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
Registration Statement to be signed on its behalf by the undersigned, thereto
duly authorized, in the City of Beaverton, State of Oregon, on August 29, 1996.
PROTECTION ONE, INC.
PROTECTION ONE ALARM MONITORING, INC.
METROL SECURITY SERVICES, INC.
SONITROL OF ARIZONA, INC.
By: JOHN W. HESSE
---------------------------
John W. Hesse
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------- ---------------------------- ----------------
<S> <C> <C>
*
------------------------------- President, Chief Executive August 29, 1996
James M. Mackenzie, Jr. Officer and Director
JOHN W. HESSE Executive Vice President August 29, 1996
------------------------------- Chief Financial Officer
John W. Hesse (principal financial
officer)
and Secretary
* Director August 29, 1996
-------------------------------
Robert M. Chefitz
* Director August 29, 1996
--------------------------------
Ben Enis
* Director August 29, 1996
---------------------------------
James Q. Wilson
*By:-----------------------------
John W. Hesse
Attorney-in-fact
</TABLE>
II-4
<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING PROTECTION ONE ALARM SERVICES, INC. INTO
PROTECTION ONE ALARM MONITORING, INC.
Protection One Alarm Monitoring, Inc., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation")
DOES HEREBY CERTIFY:
FIRST: That the Corporation was incorporated on the 4th day of
September, 1991, pursuant to the General Corporation Law of the State of
Delaware.
SECOND: That the Corporation owns one hundred percent (100%)
of the outstanding shares of the common stock, stock par value ("Subsidiary
Stock"), of Protection One Alarm Services, Inc., a corporation incorporated on
the 31st day of May, 1988, pursuant to the Business Corporation Act of the State
of Oregon ("Subsidiary"), and having no class of stock outstanding other than
said common stock.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted on the 24th day of April, 1996, determined
to, and effective upon the filing of this Certificate of Ownership and Merger
with the Secretary of the State of Delaware does, merge Subsidiary into itself
on the conditions set forth in such resolutions as stated below:
WHEREAS, Protection One Alarm Monitoring, Inc., a
corporation organized and existing under the laws of the State of
Delaware ("Parent"), was incorporated on the 4th day of September,
1991, pursuant to the General Corporation Law of the State of Delaware,
the provisions of which permit the merger of a foreign subsidiary into
a parent corporation organized and existing under the laws of the State
of Delaware;
WHEREAS, Parent is the legal and beneficial owner of
one hundred percent (100%) of the outstanding shares of the common
stock, no par value ("Subsidiary Stock"), of Protection One Alarm
Services, Inc., a corporation incorporated on the 31st day of May,
1988, pursuant to the Business Corporation Act of the State of Oregon
("Subsidiary"), and having no class of stock outstanding other than
said common stock; and
WHEREAS, Parent desires to, and effective upon the
filing of a certificate of ownership and merger with the Secretary of
State of Delaware and the filing of articles of merger with the
Secretary of State of Oregon will, merge with Subsidiary, assuming all
of the obligations of Subsidiary, pursuant to the provisions of Section
253 of the Delaware General Corporation Law and Oregon Revised Statutes
60.491;
NOW, THEREFORE, BE IT RESOLVED, that the maintenance
or preservation of Subsidiary no longer being desirable in the conduct
of the business of Parent and Subsidiary, effective upon the filing of
an appropriate certificate of ownership and merger and resolutions of
Parent with the Secretary of State of Delaware, Subsidiary will merge
itself into Parent, which will assume all of the obligations of
Subsidiary;
<PAGE> 2
RESOLVED, that the terms and conditions of the merger
are as follows:
1. Upon the proposed merger becoming effective, and
without any action on the part of any holder of any shares of
Subsidiary Stock, each issued and outstanding share of
Subsidiary Stock shall automatically be cancelled and cease to
be outstanding, without any payment being made in respect
thereof, and no shares of Parent shall be issued in exchange
therefor;
2. Upon the proposed merger becoming effective, the
certificate of incorporation, bylaws, officers and directors
of the surviving corporation shall be the same as the
certificate of incorporation, bylaws, officers and directors
of Parent immediately before the merger becoming effective;
and
3. Upon the proposed merger becoming effective,
Parent shall possess all the rights, privileges, powers and
franchises and be subject to all of the restrictions,
disabilities and duties of Subsidiary and Parent, all as
provided under Delaware and Oregon law;
RESOLVED, that the President or any Vice President of
Parent be, and each hereby is, authorized to make and execute, and the
Secretary or any Assistant Secretary be, and each hereby is, authorized
to attest, a certificate of ownership and merger setting forth a copy
of the resolutions providing for the merger of Subsidiary into Parent,
and the date of adoption of these resolutions, and to cause the same to
be filed with the Secretary of State of Delaware and a certified copy
recorded in the office of the Recorder of Deeds of New Castle County,
Delaware, and to execute and deliver all other documents and to do all
other acts and things whatsoever, whether within or without the State
of Delaware, that may be in any way necessary or appropriate to effect
said merger and to consummate the transactions contemplated by these
resolutions, including, without limitation, preparing, executing and
filing with the Secretary of State of Oregon appropriate articles of
merger;
RESOLVED, that anything herein or elsewhere to the
contrary notwithstanding, in accordance with Section 251(d) of the
Delaware General Corporation Law, the merger of Subsidiary and Parent
may be amended or terminated and abandoned by the Board of Directors of
Parent at any time prior to the date of filing the merger with the
Secretary of State of Delaware; and
RESOLVED, that any and all documents heretofore
executed, and acts heretofore done, by any past or present officer or
director of Parent in connection with the proposed merger and the
transactions contemplated herein are hereby ratified and confirmed.
FOURTH: Anything herein or elsewhere to the contrary
notwithstanding, in accordance with Section 251(d) of the Delaware General
Corporation Law, this merger may be amended or terminated and abandoned by the
Board of Directors of the Corporation at any time prior to the date of filing
the merger with the Secretary of State of Delaware.
2
<PAGE> 3
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by James M. Mackenzie, Jr., its President, and attested
by John E. Mack, III, its Assistant Secretary, this 10th day of May, 1996.
Protection One Alarm Monitoring, Inc.,
a Delaware corporation
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
ATTEST:
By: John E. Mack, III
-------------------------------
John E. Mack, III,
Assistant Secretary
3
<PAGE> 4
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING A-ABLE LOCK & ALARM, INC. INTO
PROTECTION ONE ALARM MONITORING, INC.
Protection One Alarm Monitoring, Inc., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation")
DOES HEREBY CERTIFY:
FIRST: That the Corporation was incorporated on the 4th day of
September, 1991, pursuant to the General Corporation Law of the State of
Delaware.
SECOND: That the Corporation owns one hundred percent (100%)
of the outstanding shares of the common stock, no par value ("A-Able Stock"), of
A-Able Lock & Alarm, Inc., a corporation incorporated on the first day of
October, 1974, pursuant to the General Corporation Law of the State of Nevada
("A-Able"), and having no class of stock outstanding other than said common
stock.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted at a meeting held on the 27th day of June,
1996, determined to, and effective upon the filing of this Certificate of
Ownership and Merger with the Secretary of State of Delaware does merge A-Able
into itself on the conditions set forth in such resolutions as stated below:
WHEREAS, Protection One Alarm Monitoring, Inc., a
corporation organized and existing under the laws of the State of
Delaware ("Parent") was incorporated on the 4th day of September, 1991,
pursuant to the General Corporation Law of the State of Delaware, the
provisions of which permit the merger of a foreign subsidiary into a
parent corporation organized and existing under the laws of the State
of Delaware; and
WHEREAS, the Parent is the legal and beneficial owner
of one hundred percent (100%) of the outstanding shares of the common
stock, no par value ("A-Able Stock"), of A-Able Lock & Alarm, Inc., a
corporation incorporated on the first day of October, 1974, pursuant to
the General Corporation Law of the State of Nevada (the "Subsidiary"),
and having no class of stock outstanding other than said common stock;
and
WHEREAS, the Parent desires to, and effective upon
the filing of a Certificate of Ownership and Merger with the Secretary
of State of Delaware, merge with the Subsidiary, assuming all of the
obligations of the Subsidiary, pursuant to the provisions of Section
253 of the Delaware General Corporation Law; and
WHEREAS, effective upon the merger, the Parent
desires to transfer all of the assets and liabilities formerly held by
the Subsidiary and assumed by the Parent in the merger, with the
exception of certain monitoring contracts, to Protection One Alarm
Services, Inc., an Oregon corporation and wholly owned subsidiary of
the Parent ("Services");
<PAGE> 5
NOW, THEREFORE, BE IT RESOLVED, that effective upon
the filing of an appropriate Certificate of Ownership and Merger and
resolutions of the Parent with the Secretary of State of Delaware, the
Subsidiary will merge itself into the Parent, which will assume all of
the obligations of the Subsidiary; and
RESOLVED, that the terms and conditions of the merger
are as follows:
1. Upon the proposed merger becoming effective, and without
any action on the part of any holder of any shares of A-Able Stock, each issued
and outstanding share of A- Able Stock shall automatically be cancelled and
cease to be outstanding, without any payment being made in respect thereof, and
no shares of the Parent shall be issued in exchange therefor;
2. Upon the proposed merger becoming effective, the
certificate of incorporation, bylaws, officers and directors of the surviving
corporation shall be the same as the certificate of incorporation, bylaws,
officers and directors of the Parent immediately before the merger becoming
effective; and
3. Upon the proposed merger becoming effective, the Parent
shall possess all the rights, privileges, powers and franchises and be subject
to all of the restrictions, disabilities and duties of the Subsidiary and the
Parent, all as provided under Delaware law; and
RESOLVED, that upon the proposed merger becoming
effective, the Parent shall transfer all of the assets and liabilities
formerly held by the Subsidiary and assumed by the Parent in the
merger, with the exception of certain monitoring contracts, to
Services; and
RESOLVED, that the President or any Vice President of
the Corporation be and each hereby is authorized to make and execute,
and the Secretary or any Assistant Secretary be and each hereby is
authorized to attest, a Certificate of Ownership and Merger setting
forth a copy of the resolutions providing for the merger of the
Subsidiary into the Parent, and the date of adoption of these
resolutions, and to cause the same to be filed with the Secretary of
State of Delaware and a certified copy recorded in the office of the
Recorder of Deeds of New Castle County, Delaware, and to execute and
deliver any other documents and to do all acts and things whatsoever,
whether within or without the State of Delaware, which may be in any
way necessary or appropriate to effect said merger, to transfer said
assets and liabilities to Services and to consummate the transactions
contemplated by these resolutions; and
RESOLVED, that anything herein or elsewhere to the
contrary notwithstanding, in accordance with Section 251(d) of the
Delaware General Corporation Law, this merger may be amended or
terminated and abandoned by the Board of Directors of the Parent at any
time prior to the date of filing the merger with the Secretary of State
of Delaware; and
RESOLVED, that any and all documents heretofore
executed, and acts heretofore done, by any past or present officer or
director of the Parent in connection with the proposed merger and the
transactions contemplated herein are hereby ratified and confirmed; and
RESOLVED, that these resolutions shall be effective
upon their passage.
2
<PAGE> 6
FOURTH: Anything herein or elsewhere to the contrary
notwithstanding, in accordance with Section 251(d) of the Delaware General
Corporation Law, this merger may be amended or terminated and abandoned by the
Board of Directors of the Corporation at any time prior to the date of filing
the merger with the Secretary of State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by James M. Mackenzie, Jr., its President, and attested
by John W. Hesse, its Secretary, this 20th day of July, 1995.
Protection One Alarm Monitoring, Inc.,
a Delaware corporation
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
ATTEST:
By: John W. Hesse
------------------------------------
John W. Hesse, Secretary
3
<PAGE> 7
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING NEVADA CENTRAL, INC. INTO
PROTECTION ONE ALARM MONITORING, INC.
Protection One Alarm Monitoring, Inc., a corporation organized
and existing under the laws of the State of Delaware (the "Corporation")
DOES HEREBY CERTIFY:
FIRST: That the Corporation was incorporated on the 4th day of
September, 1991, pursuant to the General Corporation Law of the State of
Delaware.
SECOND: That the Corporation owns one hundred percent (100%)
of the outstanding shares of the common stock, $0.001 par value per share
("Nevada Central Stock"), of Nevada Central, Inc., a corporation incorporated on
the 22nd day of January, 1992, pursuant to the General Corporation Law of the
State of Nevada ("Nevada Central"), and having no class of stock outstanding
other than said common stock.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted at a meeting held on the 3rd day of May,
1995, determined to, and effective upon the filing of this Certificate of
Ownership and Merger with the Secretary of the State of Delaware does merge
Nevada Central into itself on the conditions set forth in such resolutions as
stated below:
WHEREAS, Protection One Alarm Monitoring, Inc., a
corporation organized and existing under the laws of the State of
Delaware ("Parent"), was incorporated on the 4th day of September,
1991, pursuant to the General Corporation Law of the State of Delaware,
the provisions of which permit the merger of a foreign subsidiary into
a parent corporation organized and existing under the laws of the State
of Delaware;
WHEREAS, the Parent is the legal and beneficial owner
of one hundred percent (100%) of the outstanding shares of the common
stock, $0.001 par value per share ("Nevada Central Stock"), of Nevada
Central, Inc., a corporation incorporated on the 22nd day of January,
1992, pursuant to the General Corporation Law of the State of Nevada
(the "Subsidiary"), and having no class of stock outstanding other than
said common stock; and
WHEREAS, the Parent desires to, and effective upon
the filing of a Certificate of Ownership and Merger with the Secretary
of State of Delaware, merge with the Subsidiary, assuming all of the
obligations of the Subsidiary, pursuant to the provisions of Section
253 of the Delaware General Corporation Law;
NOW, THEREFORE, BE IT RESOLVED, that effective upon
the filing of an appropriate Certificate of Ownership and Merger and
resolutions of the Parent with the Secretary of State of Delaware, the
Subsidiary will merge itself into the Parent, which will assume all of
the obligations of the Subsidiary; and
RESOLVED, that the terms and conditions of the merger
are as follows:
<PAGE> 8
1. Upon the proposed merger becoming effective, and
without any action on the part of any holder of any shares of
Nevada Central Stock, each issued and outstanding share of
Nevada Central Stock shall automatically be cancelled and
cease to be outstanding, without any payment being made in
respect thereof, and no shares of the Parent shall be issued
in exchange therefor;
2. Upon the proposed merger becoming effective, the
certificate of incorporation, bylaws, officers and directors
of the surviving corporation shall be the same as the
certificate of incorporation, bylaws, officers and directors
of the Parent immediately before the merger becoming
effective; and
3. Upon the proposed merger becoming effective, the
Parent shall possess all the rights, privileges, powers and
franchises and be subject to all of the restrictions,
disabilities and duties of the Subsidiary and the Parent, all
as provided under Delaware law; and
RESOLVED, that the President or any Vice President of
the Corporation be and each hereby is authorized to make and execute,
and the Secretary or any Assistant Secretary be and each hereby is
authorized to attest, a Certificate of Ownership and Merger setting
forth a copy of the resolutions providing for the merger of the
Subsidiary into the Parent, and the date of adoption of these
resolutions, and to cause the same to be filed with the Secretary of
State of Delaware and a certified copy recorded in the office of the
Recorder of Deeds of Kent County, Delaware, and do all acts and things,
whatsoever, whether within or without the State of Delaware, which may
be in any way necessary or appropriate to effect said merger; and
RESOLVED, that anything herein or elsewhere to the
contrary notwithstanding, in accordance with Section 251(d) of the
Delaware General Corporation Law, this merger may be amended or
terminated and abandoned by the Board of Directors of the Parent at any
time prior to the date of filing the merger with the Secretary of State
of Delaware; and
RESOLVED, that these resolutions shall be effective
upon their passage.
FOURTH: Anything herein or elsewhere to the contrary
notwithstanding, in accordance with Section 251(d) of the Delaware General
Corporation Law, this merger may be amended or terminated and abandoned by the
Board of Directors of the Corporation at any time prior to the date of filing
the merger with the Secretary of State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by James M. Mackenzie, Jr., its President, and attested
by John W. Hesse, its Secretary, this 5th day of May, 1995.
Protection One Alarm Monitoring, Inc.,
a Delaware corporation
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
3
<PAGE> 9
ATTEST:
By: John W. Hesse
-----------------------------------
John W. Hesse, Secretary
4
<PAGE> 10
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING CUSTOM HOUSE, INC. INTO
PROTECTION ONE ALARM MONITORING, INC.
(PURSUANT TO SECTION 253 OF THE
GENERAL CORPORATION LAW OF DELAWARE)
James M. Mackenzie, Jr., President, and John W. Hesse,
Secretary, of Protection One Alarm Monitoring, Inc., a corporation incorporated
on the 4th day of September, 1991, pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "Parent Corporation"), certify
that:
1. Parent Corporation owns all of the outstanding stock of
Custom House, Inc., a corporation incorporated on the 27th day of February,
1973, pursuant to the Washington Business Corporation Act.
2. The directors of Parent Corporation unanimously adopted the
following resolutions pursuant to a Consent to Corporate Action of the Board of
Directors of Parent Corporation dated as of March 3, 1995:
WHEREAS, Protection One Alarm Monitoring, Inc., a
Delaware corporation (the "Corporation") owns all of the outstanding
stock of Custom House, Inc., a Washington corporation; and
WHEREAS, the Corporation desires to merge Custom
House, Inc. into itself and assume all of its liabilities and
obligations.
NOW, THEREFORE, IT IS RESOLVED, that the Corporation
merge Custom House, Inc. into itself as of the date of the filing of
the Certificate of Ownership and Merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware and assume all of the
liabilities and obligations of Custom House, Inc.; and be it
RESOLVED FURTHER, that the President or a Vice
President and the Secretary or the Treasurer of the Corporation are
directed to make and execute a Certificate of Ownership and Merger
pursuant to Section 253 of the General Corporation Law of the State of
Delaware, setting forth a copy of this resolution, to merge Custom
House, Inc. into the Corporation and to assume all of the liabilities
and obligations of Custom House, Inc., and to file the same in the
office of the Secretary of State of the State of Delaware and a
certified copy thereof in the office of the Recorder of Deeds of New
Castle County, State of Delaware, and be it
RESOLVED FURTHER, that the President or a Vice
President and the Secretary or the Treasurer of the Corporation are
also directed to make and execute Articles of Merger pursuant to RCW
23B.11.050 merging Custom House, Inc. into the Corporation and to file
the same in the Office of the Secretary of State of the State of
Washington; and be it
RESOLVED FURTHER, that, upon the filing of the
Certificate of Ownership and Merger with the State of Delaware and the
Articles of Merger with the State of Washington, the officers of the
Corporation are authorized and directed to cancel all of
<PAGE> 11
the issued and outstanding shares of the capital stock of Custom House,
Inc. (with all of the issued and outstanding shares of the capital
stock of the Corporation remaining unaffected); and be it
RESOLVED FURTHER, that the officers of the
Corporation are authorized and directed to do all acts and things
whatsoever, whether within or without the State of Delaware, which may
be necessary or proper to effect such merger.
PARENT CORPORATION:
PROTECTION ONE ALARM MONITORING, INC.
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
By: John W. Hesse
-------------------------------------
John W. Hesse, Secretary
VERIFICATION
James M. Mackenzie, Jr. and John W. Hesse say:
1. They are the President and Secretary, respectively, of
Protection One Alarm Monitoring, Inc., a Delaware corporation.
2. They have read the foregoing Certificate of Ownership and
Merger and know the contents thereof.
3. The same is true of their own knowledge.
4. They executed the foregoing Certificate of Ownership and
Merger as of March 3, 1995, at Los Angeles County, California, and as of March
3, 1995 at Washington County, Oregon, respectively.
5. We declare under penalty of perjury that the foregoing is
true and correct.
James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr.
John W. Hesse
-------------------------------------
John W. Hesse
3
<PAGE> 12
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING STATEWIDE ALARM CORP. INTO
PROTECTION ONE ALARM MONITORING, INC.
(PURSUANT TO SECTION 253 OF THE
GENERAL CORPORATION LAW OF DELAWARE)
James M. Mackenzie, Jr., President, and John W. Hesse,
Secretary, of Protection One Alarm Monitoring, Inc., a corporation incorporated
on the 4th day of September, 1991, pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "Parent Corporation") certify
that:
6. The Parent Corporation owns all of the outstanding stock of
Statewide Alarm Corp., a corporation incorporated on the 4th day of September,
1979, pursuant to the Corporations Code of the State of California (the
"Subsidiary Corporation").
7. The directors of the Parent Corporation unanimously adopted
the following resolutions pursuant to a Consent to Corporate Action of the Board
of Directors of Parent Corporation dated as of February 21, 1994:
WHEREAS, Protection One Alarm Monitoring, Inc. (the
"Corporation") owns all of the outstanding stock of Statewide Alarm
Corp., a California corporation; and
WHEREAS, it is deemed in the best interests of the
Corporation and its shareholder that the Corporation merge Statewide
Alarm Corp. into itself and assume all of its obligations.
NOW THEREFORE, IT IS RESOLVED that the Corporation
merge Statewide Alarm Corp. into itself as of the date of the filing of
the Certificate of Ownership and Merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware and assume all of the
obligations of Statewide Alarm Corp.; and be it
RESOLVED FURTHER, that the President and the
Secretary of the Corporation are directed to execute and file a
Certificate of Ownership and Merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware, in the offices of the
Secretary of the State of Delaware and a certified copy thereof in the
office of the recorder of deeds of New Castle County, State of
Delaware, to cause the President and Secretary of Statewide Alarm Corp.
to execute and file a Certificate of Ownership pursuant to Section 1110
of the Corporations Code of the State of California in the offices of
the Secretary of
<PAGE> 13
State of the State of California, and to take such further actions as
may be necessary or proper to accomplish such merger.
PARENT CORPORATION:
PROTECTION ONE ALARM MONITORING, INC.
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
By: John W. Hesse
-------------------------------------
John W. Hesse, Secretary
VERIFICATION
James M. Mackenzie, Jr. and John W. Hesse say:
1. They are the President and Secretary, respectively, of
Protection One Alarm Monitoring, Inc., a Delaware corporation.
2. They have read the foregoing Certificate of Ownership and
Merger and know the contents thereof.
3. The same is true of their own knowledge.
4. They executed the foregoing Certificate of Ownership and
Merger as of February 21, 1994, at Los Angeles County, California, and as of
February 21, 1994, at Washington County, Oregon, respectively.
5. We declare under penalty of perjury that the foregoing is
true and correct.
James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr.
John W. Hesse
-------------------------------------
John W. Hesse
2
<PAGE> 14
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
AMERICAN HOME SECURITY, INC.
INTO
PROTECTION ONE ALARM MONITORING, INC.
(PURSUANT TO SECTION 253 OF THE
GENERAL CORPORATION LAW OF DELAWARE)
James M. Mackenzie, Jr., President, and John W. Hesse,
Secretary, of Protection One Alarm Monitoring, Inc., a corporation incorporated
on the 4th day of September, 1991, pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "Parent Corporation"), certify
that:
6. The Parent Corporation owns all of the outstanding stock of
American Home Security, Inc., a corporation incorporated on the 7th day of
January, 1974, pursuant to the Corporations Code of the State of California
(the "Subsidiary Corporation").
7. The directors of the Parent Corporation unanimously adopted
the following resolutions pursuant to a Consent to Corporate Action of the Board
of Directors of the Parent Corporation dated as of February 21, 1994:
WHEREAS, Protection One Alarm Monitoring, Inc. (the
"Corporation") owns all of the outstanding stock of American Home
Security, Inc., a California corporation; and
WHEREAS, it is deemed in the best interests of the
Corporation and its shareholder that the Corporation merge American
Home Security, Inc.
into itself and assume all of its obligations.
NOW THEREFORE, IT IS RESOLVED that the Corporation
merge American Home Security, Inc. into itself as of the date of the
filing of the Certificate of Ownership and Merger pursuant to Section
253 of the General Corporation Law of the State of Delaware and assume
all of the obligations of American Home Security, Inc.; and be it
RESOLVED FURTHER, that the President and the
Secretary of the Corporation are directed to execute and file a
Certificate of Ownership and Merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware, in the offices of the
Secretary of the State of Delaware and a certified copy thereof in the
office of the recorder of deeds of New Castle County, State of
Delaware, to cause the President and Secretary of American Home
Security, Inc. to execute and file a Certificate of Ownership pursuant
to Section 1110 of the Corporations Code of the State of California in
the offices of the Secretary of
<PAGE> 15
State of the State of California, and to take such further actions as
may be necessary or proper to accomplish such merger.
PARENT CORPORATION:
PROTECTION ONE ALARM MONITORING, INC.
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
By: John W. Hesse
-------------------------------------
John W. Hesse, Secretary
VERIFICATION
James M. Mackenzie, Jr. and John W. Hesse say:
1. They are the President and Secretary, respectively, of
Protection One Alarm Monitoring, Inc., a Delaware corporation.
2. They have read the foregoing Certificate of Ownership and
Merger and know the contents thereof.
3. The same is true of their own knowledge.
4. They executed the foregoing Certificate of Ownership and
Merger as of February 21, 1994, at Los Angeles County, California, and as of
February 21, 1994, at Washington County, Oregon, respectively.
5. We declare under penalty of perjury that the foregoing is
true and correct.
James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr.
John W. Hesse
-------------------------------------
John W. Hesse
2
<PAGE> 16
CERTIFICATE OF MERGER OF
HOME ACQUISITION CO. AND
UNIVERSAL PROTECTION SERVICE, INC., INTO
PROTECTION ONE ALARM MONITORING, INC.
(UNDER SECTION 252 OF THE GENERAL
CORPORATION LAW OF DELAWARE)
PROTECTION ONE ALARM MONITORING, INC., hereby certifies that:
6. The name and state of incorporation of each of the
constituent corporations are:
(a) Home Acquisition Co., a California corporation;
(b) Universal Protection Service, Inc., a California
corporation;
(c) Protection One Alarm Monitoring, Inc., a Delaware
corporation.
7. An agreement of merger has been approved, adopted,
certified, executed and acknowledged by Home Acquisition Co., by Universal
Protection Service, Inc., and by Protection One Alarm Monitoring, Inc., in
accordance with the provisions of subsection (c) of Section 252 of the General
Corporation Law of the State of Delaware.
8. The name of the surviving corporation is Protection One
Alarm Monitoring, Inc.
9. The certificate of incorporation of Protection One Alarm
Monitoring, Inc. shall be the certificate of incorporation of the surviving
corporation.
10. The surviving corporation is a corporation of the State of
Delaware.
11. The executed agreement of merger is on file at the
principal place of business of Protection One Alarm Monitoring, Inc., at 15951
S.W. 72nd Avenue, Portland, Oregon 97224.
12. A copy of the agreement of merger will be furnished by
Protection One Alarm Monitoring, Inc., on request and without cost, to any
stockholder of Home Acquisition Co., Universal Protection Service, Inc., or
Protection One Alarm Monitoring, Inc.
13. The authorized capital stock of Home Acquisition Co. is
100 shares of common stock, $.10 par value, and of Universal Protection Service,
Inc. is 100,000 shares of common stock, no par value.
<PAGE> 17
IN WITNESS WHEREOF, Protection One Alarm Monitoring, Inc. has
caused this certificate to be signed by James M. Mackenzie, Jr., its President
and attested by John W. Hesse, its Secretary as of the 21st day of January, 1994
PROTECTION ONE ALARM MONITORING, INC.
By: James M. Mackenzie, Jr.
-------------------------------------
James M. Mackenzie, Jr., President
ATTEST:
By: John W. Hesse
------------------------------------
John W. Hesse, Secretary
2
<PAGE> 18
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
PROTECTION ONE ALARM MONITORING, INC., a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
The present registered agent of the corporation is THE
PRENTICE-HALL CORPORATION SYSTEM, INC. and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of PROTECTION ONE ALARM MONITORING,
INC. adopted the following resolution on the 3rd day of June, 1993.
Resolved, that the registered office of PROTECTION
ONE ALARM MONITORING, INC., in the state of Delaware be and it hereby
is changed to Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, and the authorization of the
present registered agent of this corporation be and the same is hereby
withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby
constituted and appointed the registered agent of this corporation at
the address of its registered office.
IN WITNESS WHEREOF, PROTECTION ONE ALARM MONITORING, INC., has
caused this statement to be signed by Thomas K. Rankin, its Vice President and
attested by John W. Hesse, its Secretary this 3rd day of June, 1993.
By: Thomas K. Rankin
-------------------------------------
Thomas K. Rankin, Vice President
ATTEST:
By: John W. Hesse
-----------------------------------
John W. Hesse, Secretary
<PAGE> 19
CERTIFICATE OF INCORPORATION
PROTECTION ONE ALARM MONITORING, INC.
FIRST: The name of the corporation is Protection One Alarm
Monitoring, Inc. (the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is 32 Loockerman Square, Suite L-100, in the City of
Dover, County of Kent. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of common stock that the
Corporation shall have authority to issue is 1,000 and the par value of each of
such shares is $0.10.
FIFTH: The name and mailing address of the sole incorporator
are as follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Eugene R. Sullivan, Jr. c/o Chadbourne & Parke
30 Rockefeller Plaza
New York, NY 10112
</TABLE>
SIXTH: The Board of Directors is authorized to adopt, amend or
repeal the By- Laws of the Corporation.
SEVENTH: Meetings of stockholders shall be held at such place,
within or without the State of Delaware, as may be designated by or in the
manner provided in the ByLaws, or, if not so designated or provided, at the
registered office of the Corporation in the State of Delaware. Elections of
directors need not be by written ballot unless and to the extent that the
By-laws so provide.
EIGHTH. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing clause shall
not apply to any liability of a director to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Corporation or
its stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Neither the amendment nor repeal
of this Article EIGHTH, nor the adoption of any provision of this Certification
of Incorporation inconsistent with this Article EIGHTH, shall be effective with
respect to any cause of action, suit, claim or other matter that, but for this
Article EIGHTH, would accrue or arise prior to such amendment, repeal or
adoption of an inconsistent provision.
<PAGE> 20
NINTH: Whenever a compromise or arrangement is proposed
between the Corporation and its creditors or any class of them and/or between
and its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provision of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provision of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequences of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of the creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
TENTH: The Corporation reserves the right to amend, alter or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights of stockholders
herein are subject to this reservation.
THE UNDERSIGNED, being the sole incorporator above named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, has signed this instrument this 4th day of September,
1991.
Eugene R. Sullivan, Jr.
-----------------------------------
Eugene R. Sullivan, Jr.
Sole Incorporator
2
<PAGE> 1
Exhibit 4.1
================================================================================
PROTECTION ONE ALARM MONITORING, INC.,
as Issuer
PROTECTION ONE, INC.,
as Parent Company
and
_____________________________________________
as Trustee
_____________
Senior Debt Shelf Indenture
Dated as of __________, 199__
_____________
<PAGE> 2
CROSS-REFERENCE TABLE
Section of the Trust Indenture Act Indenture Sections
310 (a)(1)....................................................6.08
(a)(2)....................................................6.08
(a)(3)...................................................13.07
(a)(4).................................................Inapplicable
(a)(5)...................................................13.07
(b).......................................................6.08; 6.09
(c)....................................................Inapplicable
311 ........................................................6.04
312 ........................................................4.01; 4.02
313 (a).......................................................4.04
(b)(i).................................................Inapplicable
(b)(2)....................................................4.04
(c).......................................................4.04
314 (a).......................................................4.03
(b)....................................................Inapplicable
(c)(1)...................................................13.05
(c)(2)...................................................13.05
(c)(3).................................................Inapplicable
(d)....................................................Inapplicable
(e)......................................................13.05
(f)....................................................Inapplicable
315 (a).......................................................6.01
(b).......................................................5.11
(c).......................................................6.01
(d).......................................................6.01
(e).......................................................5.12
316 (a)(1)....................................................5.09
(a)(2).................................................Inapplicable
(b).......................................................5.07
(c)......................................................13.07
317 (a).......................................................5.02
(b).......................................................3.04
318 (a)......................................................13.07
(b)......................................................13.07
(c)......................................................13.07
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
Definitions..................................... 1
SECTION 1.01 Certain Terms Defined................................................ 1
ARTICLE TWO
Securities...................................... 10
SECTION 2.01 Forms Generally...................................................... 10
SECTION 2.02 Form of Trustee's Certificate of Authentication...................... 11
SECTION 2.03 Amount Unlimited; Issuable in Series................................. 11
SECTION 2.04 Authentication and Delivery of Securities............................ 14
SECTION 2.05 Execution of Securities.............................................. 17
SECTION 2.06 Certificate of Authentication........................................ 18
SECTION 2.07 Denomination and Date of Securities; Payments of Interest............ 18
SECTION 2.08 Registration, Transfer and Exchange.................................. 19
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities............ 23
SECTION 2.10 Cancellation of Securities; Destruction Thereof...................... 24
SECTION 2.11 Temporary Securities................................................. 24
ARTICLE THREE
Covenants Of The Issuer............................... 25
SECTION 3.01 Payment of Principal and Interest.................................... 25
SECTION 3.02 Offices for Payments, etc............................................ 26
SECTION 3.03 Appointment to Fill a Vacancy in Office of Trustee................... 27
SECTION 3.04 Paying Agents........................................................ 27
SECTION 3.05 Notice of Defaults................................................... 28
SECTION 3.06 Compliance Certificates.............................................. 28
SECTION 3.07 Negative Pledge...................................................... 29
SECTION 3.08 Issuance of Subsidiary Guarantees by Restricted Subsidiaries......... 29
SECTION 3.09 Luxembourg Publications.............................................. 29
ARTICLE FOUR
Securityholders Lists And Reports By The Issuer And The Trustee........... 29
SECTION 4.01 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders..................................................... 29
SECTION 4.02 Preservation and Disclosure of Securityholders Lists................. 30
SECTION 4.03 Reports by the Issuer................................................ 30
SECTION 4.04 Reports by the Trustee............................................... 30
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE FIVE
Remedies Of The Trustee And Securityholders On Event Of Default........... 31
SECTION 5.01 Event of Default Defined; Acceleration of Maturity; Waiver of
Default............................................................. 31
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt........ 34
SECTION 5.03 Application of Proceeds.............................................. 37
SECTION 5.04 Suits for Enforcement................................................ 38
SECTION 5.05 Restoration of Rights on Abandonment of Proceedings.................. 38
SECTION 5.06 Limitations on Suits by Securityholders.............................. 38
SECTION 5.07 Unconditional Right of Securityholders to Institute Certain Suits.... 39
SECTION 5.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default................................................... 39
SECTION 5.09 Control by Holders of Securities..................................... 39
SECTION 5.10 Waiver of Past Defaults.............................................. 40
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances....................................................... 40
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs......... 41
ARTICLE SIX
Concerning The Trustee................................ 41
SECTION 6.01 Duties and Responsibilities of the Trustee; During Default; Prior
to Default.......................................................... 41
SECTION 6.02 Certain Rights of the Trustee........................................ 43
SECTION 6.03 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof..................................... 44
SECTION 6.04 Trustee and Agents May Hold Securities or Coupons;
Collections, etc.................................................... 44
SECTION 6.05 Moneys Held by Trustee............................................... 44
SECTION 6.06 Compensation and Indemnification of Trustee and Its Prior Claim...... 44
SECTION 6.07 Right of Trustee to Rely on Officers' Certificate, etc............... 45
SECTION 6.08 Corporate Trustee Required; Eligibility[; Conflicting Interests]..... 45
SECTION 6.09 Resignation and Removal; Appointment of Successor Trustee............ 46
SECTION 6.10 Acceptance of Appointment by Successor Trustee....................... 47
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business of
Trustee............................................................. 49
SECTION 6.12 Appointment of Authenticating Agent.................................. 49
ARTICLE SEVEN
Concerning The Securityholders............................ 50
SECTION 7.01 Evidence of Action Taken by Securityholders.......................... 51
SECTION 7.02 Proof of Execution of Instruments and of Holding of Securities....... 51
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 7.03 Holders to be Treated as Owners..................................... 52
SECTION 7.04 Securities Owned by Issuer Deemed Not Outstanding................... 52
SECTION 7.05 Right of Revocation of Action Taken................................. 53
ARTICLE EIGHT
Supplemental Indentures.............................. 54
SECTION 8.01 Supplemental Indentures Without Consent of Securityholders.......... 54
SECTION 8.02 Supplemental Indentures With Consent of Securityholders............. 55
SECTION 8.03 Effect of Supplemental Indenture.................................... 57
SECTION 8.04 Documents to Be Given to Trustee.................................... 57
SECTION 8.05 Notation on Securities in Respect of Supplemental Indentures........ 57
SECTION 8.06 Conformity with Trust Indenture Act................................. 57
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance....................... 58
SECTION 9.01 Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.................................... 58
SECTION 9.02 Successor Corporation Substituted................................... 58
SECTION 9.03 Opinion of Counsel Delivered to Trustee............................. 59
ARTICLE TEN
Satisfaction and Discharge Of Indenture; Unclaimed Moneys............ 59
SECTION 10.01 Satisfaction and Discharge of Indenture............................ 59
SECTION 10.02 Application by Trustee of Funds Deposited for Payment of
Securities........................................................ 63
SECTION 10.03 Repayment of Moneys Held by Paying Agent........................... 63
SECTION 10.04 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years........................................... 64
SECTION 10.05 Indemnity for U.S. Government Obligations.......................... 64
ARTICLE ELEVEN
Redemption Of Securities And Sinking Funds...................... 64
SECTION 11.01 Applicability of Article........................................... 64
SECTION 11.02 Notice of Redemption; Partial Redemptions.......................... 65
SECTION 11.03 Payment of Securities Called for Redemption........................ 66
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption.......................................... 67
SECTION 11.05 Mandatory and Optional Sinking Funds............................... 67
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE TWELVE
Guarantee of Securities.............................. 70
SECTION 12.01 Note Guarantee..................................................... 70
SECTION 12.02 Obligations Unconditional.......................................... 73
SECTION 12.03 Release of Note Guarantees......................................... 73
SECTION 12.04 Notice to Trustee.................................................. 73
SECTION 12.05 Supplemental Indenture............................................. 73
SECTION 12.06 This Article not to Prevent Events of Default...................... 73
ARTICLE THIRTEEN
Miscellaneous Provisions.............................. 74
SECTION 13.01 Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability.................................. 74
SECTION 13.02 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons................................. 74
SECTION 13.03 Successors and Assigns of Issuer Bound by Indenture................ 74
SECTION 13.04 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons............................................ 74
SECTION 13.05 Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein................................................. 75
SECTION 13.06 Payments Due on Saturdays, Sundays and Holidays.................... 76
SECTION 13.07 Conflict of Any Provision of Indenture with Trust Indenture Act.... 76
SECTION 13.08 Governing Law...................................................... 76
SECTION 13.09 Counterparts....................................................... 77
SECTION 13.10 Effect of Headings................................................. 77
SECTION 13.11 Securities in a Foreign Currency or in ECU......................... 77
SECTION 13.12 Judgment Currency.................................................. 77
</TABLE>
iv
<PAGE> 7
THIS INDENTURE, dated as of _______________, 199_ between
PROTECTION ONE ALARM MONITORING, INC., a Delaware corporation (the "Issuer"),
PROTECTION ONE, INC., a Delaware corporation (the "Parent Company"), and
______________, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer intends to issue from time to time
unsecured debentures, notes or other evidences of indebtedness in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer, the Parent Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons,
if any, appertaining thereto as follows:
ARTICLE ONE
Definitions
SECTION 1.01 Certain Terms Defined. The following terms
(except as otherwise expressly provided in this Indenture or in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.03 or unless the context otherwise clearly requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms, as
amended, used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended, or the definitions of which in the Securities Act of 1933, as
amended, are referred to in the Trust Indenture Act of 1939, as amended,
including terms defined therein by reference to the Securities Act of 1933, as
amended, (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall have
the
<PAGE> 8
2
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"or "GAAP"
means such accounting principles as are generally accepted at the time of any
computation. 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. The terms defined in this Article have
the meanings assigned to then in this Article and include the plural as well as
the singular.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or lease-back transactions) in one
transaction or a series of related transactions by the Parent Company or any of
its Subsidiaries to any Person other than the Parent Company or any Subsidiary
of (i) all or any of the Capital Stock of any Subsidiary, (ii) all or
substantially all of the property and assets of an operating unit or business of
the Parent Company or any of its Subsidiaries or (iii) any other property and
assets of the Parent Company or any of its Subsidiaries outside the ordinary
course of business of the Parent Company or such Subsidiary; provided that sales
or other dispositions of inventory, receivables and other current assets shall
not be included within the meaning of "Asset Sale."
"Authenticating Agent" shall have the meaning set forth in
Section 6.12.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means the Board of Directors of the
Parent Company or the Board of Directors of the Issuer, as the case may be, or
any committee of either such Board of Directors, as the case may be, duly
authorized to act under this Indenture.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary of the Parent Company or by the Secretary of the
Issuer, as the case may be, to have been duly adopted or consented to by the
Board of Directors of the Parent Company or the Board of Directors of the
Issuer, as the case may be, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
<PAGE> 9
3
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located in the borough of Manhattan, The City of New York at
____________.
"Coupon" means any interest coupon appertaining to a Security.
<PAGE> 10
4
"covenant defeasance" shall have the meaning set forth in
Section 10.01(C).
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.03 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
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Funding Guarantor" shall have the meaning set forth in
Section 12.01.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
<PAGE> 11
5
"Guarantors" means the Parent Company and each of the Parent
Company's Subsidiaries that becomes a guarantor of the Securities pursuant to
the provisions of this Indenture until a successor replaces any such party
pursuant to Article Nine of this Indenture or until any such party is released
from such guaranty pursuant to the provisions of this Indenture, and thereafter
means such parties and such successors.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means obligations (other than the Securities of
such series or non-recourse obligations) of, or guaranteed or assumed by, the
Issuer, any Guarantor or any Subsidiary for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments (except, with respect to
the Issuer, the promissory notes issued by the Issuer in favor of Ion Leasing
(which obligations have been defeased by a cash deposit in a segregated trust
account)).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six)
Protection One Alarm Monitoring, Inc., a Delaware corporation and, subject to
Article Nine, its successors and assigns.
"Issuer Order" means a written request or order signed in the
name of the Issuer (i) by its Chairman, its President, an Executive Vice
President or a Vice President and (ii) by its Chief Financial Officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; provided, however, that such written request or order
may be signed by any two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors listed in such
clause (i) and one of the officers listed in clause (ii) above.
"Judgment Currency" shall have the meaning set forth in
Section 13.12.
<PAGE> 12
6
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any affiliate of the
seller, or any agreement to give any security interest).
"Note Guarantee" means, with respect to each Guarantor, the
unconditional Guarantee of the Securities by such Guarantor, pursuant to Article
Twelve.
"Officer" means, with respect to the Issuer, (i) the Chairman
of the Board, the President, any Executive Vice President, any Vice President,
the Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer,
or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to Section 314(a)(4) of the Trust Indenture Act)
shall include the statements provided for in Section 314(e) of the Trust
Indenture Act and in Section 13.05 hereof.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Issuer satisfactory to the
Trustee. Each such Opinion of Counsel shall include the statements provided for
in Section 314(e) of the Trust Indenture Act and in Section 13.05 hereof.
"Original Issue Date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
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 5.01.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided
for in Section 10.01) in the necessary amount shall have been deposited
in trust with the Trustee or with any
<PAGE> 13
7
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes 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 5.01.
"Parent Company" means the party named as such in the first
paragraph of this Indenture, which is a Guarantor of the Securities, until a
successor replaces it pursuant to Article Five of this Indenture and thereafter
means such successor.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Permitted Liens" means Liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount, Liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involves claims of less than $1,000,000, deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds and such other Liens as the Board of
Directors of the Parent Company determines do not materially detract from or
interfere with the present value or control of the assets, properties, shares of
Common Stock or Indebtedness of the Parent Company or of any Subsidiary
(including, without limitation, the Issuer).
<PAGE> 14
8
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" shall have the meaning set forth in Section
2.07.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.04, and bearing the legend prescribed
in Section 2.04.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 13.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means the Issuer and any Subsidiary of
the Issuer which is not designated an Unrestricted Subsidiary by the Parent
Company.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
<PAGE> 15
9
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of the Parent Company or the Issuer that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Parent Company,
accounted (or, on a pro forma basis, would have accounted) for more than 10% of
the consolidated revenues of the Parent Company and its Restricted Subsidiaries
or (ii) as of the end of such fiscal year, was the owner (or, on a pro forma
basis, would have been the owner) of more than 10% of the consolidated assets of
the Parent Company and its Restricted Subsidiaries, all as set forth on the most
recently available consolidated financial statements of the Parent Company for
such fiscal year.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
"Subsidiary Guarantors" means each of the Parent Company's
Subsidiaries that becomes a guarantor of the Securities pursuant to the
provisions of this Indenture.
"Trust Indenture Act"(except as otherwise provided in Section
8.07) means the Trust Indenture Act of 1939, as amended, as in force at the date
as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also 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 the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Parent Company (other than the Issuer) that is not also a Subsidiary of the
Issuer, (ii) any Subsidiary of the Issuer that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of the
Parent Company in the manner provided below and (iii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Parent Company may
designate any Subsidiary of the Issuer (including any newly acquired or newly
formed Subsidiary of the Issuer), to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
or assets of, the Parent Company or any Restricted Subsidiary; provided that
either (A) the Subsidiary to be so designated has total assets of $1,000 or less
or (B) if such Subsidiary has assets greater than $1,000, such designation would
be permitted under the Indenture dated as of May 17, 1995 (the "Discount Notes
Indenture") between the Issuer, the Parent Company, as Guarantor, and State
Street Bank and Trust Company, as Trustee, as then in effect. If at the time in
question the notes issued pursuant to the Discount Notes Indenture (the
"Discount Notes") have been paid in full or the Discount Notes Indenture shall
have been otherwise discharged, no Subsidiary with total assets of more than
$1,000 may be designated an Unrestricted Subsidiary unless such Subsidiary could
have been designated an Unrestricted Subsidiary under the Discount Notes
Indenture as in effect at the time the Discount Notes were repaid in full or the
Discount Notes Indenture was otherwise discharged. The Board of Directors of the
Parent Company may designate any Unrestricted Subsidiary (other than a
Subsidiary of the Parent Company that is not a Subsidiary of the Issuer) to be a
Restricted Subsidiary; provided that immediately after giving
<PAGE> 16
10
effect to such designation no Default or Event of Default shall have occurred
and be continuing. Any such designation by the Board of Directors of the Parent
Company shall be evidenced to the Trustee by promptly filing with the Trustee a
copy of the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions. As of the date hereof, the Parent Company has no Subsidiaries that,
upon the consummation of this offering, will be Unrestricted Subsidiaries.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.01(A).
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, such Subsidiary if all of the outstanding Capital Stock or other similar
equity ownership interests in such Subsidiary (other than any director's
qualifying shares or investments by foreign nationals mandated by applicable
law) is owned by such Person or one or more Wholly Owned Subsidiaries of such
Person.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
Securities
SECTION 2.01 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) 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 imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
<PAGE> 17
11
Officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the Officers executing such Securities
and Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
SECTION 2.02 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Senior Indenture.
____________________________,
as Trustee
By __________________________
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
certificate of authentication to be borne by the Securities of each such series
shall be substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Senior Indenture.
____________________________,
as Authenticating Agent
By __________________________
Authorized Officer"
SECTION 2.03 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 and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Issuer.
<PAGE> 18
12
There shall be established in or pursuant to one or more Board Resolutions (and
to the extent established pursuant to rather than set forth in a Board
Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the Series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11, 8.05 or
11.03);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case
of Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.02);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within which,
the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking
fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods
within which and any terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
<PAGE> 19
13
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, 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;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of such
series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, and
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.08, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such series
and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who
is not a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have
the option to redeem such Securities rather than pay such additional
amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
<PAGE> 20
14
(17) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(19) the terms, if any, on which Securities of the series may
be convertible into or exchangeable for stock or other securities of
the Parent Company or any other Person, any specific terms relating to
the adjustment thereof and the period during which such Securities may
be so convertible or exchangeable;
(20) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(21) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(22) any deletions from, modifications of or additions to any
of the definitions set forth in Article One with respect to the
Securities of such series;
(23) any other events of default or covenants with respect to
the Securities of such series; and
(24) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to such series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be provided
by or pursuant to the Board Resolution or Officers' Certificate referred to
above or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
SECTION 2.04 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer and each Guarantor to the Trustee for
authentication together with the
<PAGE> 21
15
applicable documents referred to below in this Section , and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section ) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs 2, 3 and 4 below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.01) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities
of such series shall be determined by an Issuer Order or pursuant to
such procedures and (d) if provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.01 and 2.03
by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form
or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.01 and 2.03 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
<PAGE> 22
16
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and each Guarantor and
authenticated by the Trustee in accordance with the provisions
of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of
the Issuer, enforceable in accordance with their respective
terms, and will be entitled to the benefits of this Indenture;
and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or, to the best of such
counsel's knowledge, any agreement or other instrument binding
upon the Issuer or any of its subsidiaries that is material to
the Issuer and its subsidiaries, considered as one enterprise,
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any
subsidiary, and no consent, approval or authorization of any
governmental body or agency is required for the performance by
the Issuer of its obligations under the Securities and
Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be limited
by bankruptcy, insolvency,
<PAGE> 23
17
reorganization, liquidation, moratorium and other similar laws affecting the
rights and remedies of creditors and is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). Such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the State of California and the federal law of the
United States, upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes such
counsel and the Trustee are entitled so to rely. Such counsel may also state
that, insofar as such opinion involves factual matters, such counsel has relied,
to the extent such counsel deems proper, upon certificates of officers of the
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that
the Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer and each Guarantor shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and deliver one or more Registered 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 issued
and not yet cancelled, (ii) shall be registered in the name of the Depositary
for such Registered 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."
Each Depositary designated pursuant to Section 2.03 must, at
the time of its designation and at all times while it serves a Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
SECTION 2.05 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by an Officer listed
<PAGE> 24
18
in clause (i) of the definition of Officer herein and attested by its Secretary,
any Assistant Secretary, the Treasurer or any Assistant Treasurer Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any Officer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such Officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such Officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper Officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an Officer.
SECTION 2.06 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory for
any purpose until the certificate of authentication on the Security to which
such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
SECTION 2.07 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
Board Resolution or Board
<PAGE> 25
19
Resolutions referred to in Section 2.03. The Securities of each series shall
bear interest, if any, from the date, and such interest shall be payable on the
dates, established as contemplated by Section 2.03.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.08 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.02 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee (if the
Trustee is not the registrar).
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.02, the Issuer and each Guarantor shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
the same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
<PAGE> 26
20
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the Issuer that
shall be maintained for such purpose in accordance with Section 3.02, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section 2.03,
such Unregistered Securities may be exchanged for Unregistered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02 or as specified pursuant to Section 2.03, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.03, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer and each Guarantor shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
<PAGE> 27
21
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered 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 any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.04, the Issuer shall
appoint a successor Depositary eligible under Section 2.04 with respect to such
Registered Securities. If a successor Depositary for such Registered Securities
eligible under Section 2.04 is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.03 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer and each Guarantor will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will 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 Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer and each
Guarantor will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
series, will 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
<PAGE> 28
22
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.03 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer and each Guarantor shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the Trustee
or an agent of the Issuer or the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.08 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
<PAGE> 29
23
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, each of the Issuer and each Guarantor in its discretion may
execute, and upon the written request of any Officer of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen, with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons to the
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer 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 or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon) if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer and each Guarantor, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such series duly
authenticated and delivered hereunder. All Securities and Coupons shall be held
and owned upon the express condition
<PAGE> 30
24
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer and each Guarantor may execute
and the Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series shall
be issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer and each
Guarantor with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and each Guarantor and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
and each Guarantor shall execute and shall furnish definitive Securities of such
series and thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be
maintained by the Issuer for that purpose pursuant to Section 3.02 and, in the
case of Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall
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25
be entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.03. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.03 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
Covenants Of The Issuer
SECTION 3.01 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear
on the registry books of the Issuer.
An installment of principal of or interest on any series of
Securities shall be considered paid on the date due if a sum sufficient to pay
such principal or interest so becoming due has been deposited with the Trustee
or paying agent (or if the Issuer is acting as its own paying agent, has been
set aside, segregated and held in trust) for the benefit of
<PAGE> 32
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the Holders of the Securities of such series or the Coupons appertaining
thereto, in accordance with Section 3.04.
SECTION 3.02 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, the Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Registered Securities of
each series may be presented for payment, where the Securities of each series
may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.03 and where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without adverse tax
consequences to the Issuer. Notwithstanding the foregoing, payments in Dollars
of Unregistered Securities of any series and Coupons appertaining thereto which
are payable in Dollars may be made at an agency of the Issuer maintained in the
Borough of Manhattan, The City of New York if such payment in Dollars at each
agency maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the Issuer
in respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof. In
case the Issuer shall fail to maintain any agency required by this Section to be
located in the Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.03 and where the Registered Securities
<PAGE> 33
27
of that series may be presented for registration of transfer as in this
Indenture provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain the agencies provided for in this Section . The
Issuer will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of the Trustee, will appoint, in the manner provided in Section 6.09, a Trustee,
so that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.04 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section ,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series, or Coupons
appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that is will pay any such sums so held in trust by it to
the Trustee upon Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee of
any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
<PAGE> 34
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principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.01, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all series
of Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section , such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.03 and 10.04.
SECTION 3.05 Notice of Defaults. In the event that the Issuer
or any Guarantor becomes aware of any Default or Event of Default the Issuer or
such Guarantor, as the case may be, promptly after it becomes aware thereof,
will give written notice thereof to the Trustee.
SECTION 3.06 Compliance Certificates. (a) Each of the Issuer
and the Parent Company shall deliver to the Trustee, within 45 days after the
end of each fiscal quarter (90 days after the end of the last fiscal quarter of
each year), an Officers' Certificate stating whether or not the signers know of
any Default or Event of Default that occurred during such fiscal quarter. In the
case of such Officers' Certificates delivered within 90 days of the end of each
of the Issuer's and the Parent Company's fiscal year, such certificates shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of such Company that a review
has been conducted of the activities of the Parent Company and its Subsidiaries
and the Parent Company's and its Subsidiaries' performance under this Indenture
and that the Parent Company and the Issuer has complied with all conditions and
covenants under this Indenture. For purposes of this Section 3.06(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If they do know of such a
Default or Event of Default, the certificate shall describe any such Default or
Event of Default and its status. The first certificate to be delivered pursuant
to this Section 3.06(a) shall be for the first fiscal quarter beginning after
the execution of this Indenture.
(b) Within 90 days of the end of each of the Parent Company's
and the Issuer's fiscal years, each of the Parent Company and the Issuer shall
deliver to the Trustee a list of all Significant Subsidiaries. The Trustee shall
have no duty with respect to any such list except to keep it on file and
available for inspection by the Holders.
<PAGE> 35
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SECTION 3.07 Negative Pledge. The Parent Company will not, and
will not permit the Issuer or any other Subsidiary to, create, assume, incur or
guarantee any Indebtedness secured by a Lien (except for Permitted Liens) on any
shares of Capital Stock or Indebtedness of any Subsidiary or on any of its
assets or properties without making effective provision for all of the
Securities (or, in the case of the Parent Company or any Subsidiary Guarantor,
the Note Guarantee) and all other amounts due under the Indenture to be directly
secured equally and ratably with (or, if the obligation or liability to be
secured by such Lien is subordinated in right of payment to the Securities or
any Note Guarantee, prior to) the obligation or liability secured by such Lien.
SECTION 3.08 Issuance of Subsidiary Guarantees by Restricted
Subsidiaries. Each Subsidiary of the Parent Company which becomes a Restricted
Subsidiary after the date of this Indenture and has assets in excess of $2.0
million shall together with the Issuer and each other Guarantor, (i) not later
than 30 days after such Subsidiary becomes a Restricted Subsidiary if such
Subsidiary is a Significant Subsidiary, and (ii) not later than 180 days after
such Subsidiary becomes a Restricted Subsidiary if such Restricted Subsidiary is
not a Significant Subsidiary, execute and deliver a supplemental indenture to
this Indenture providing for a Note Guarantee of payment of the Securities by
such Restricted Subsidiary pursuant to Article Twelve.
SECTION 3.09 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.09(a), 6.10, 8.02, 10.04,
11.02 or 11.05, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officers'
Certificate delivered to such party, make a similar publication in Luxembourg.
ARTICLE FOUR
Securityholders Lists And Reports By The
Issuer And The Trustee
SECTION 4.01 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing Registered
Securities in each year, and (b) at such other
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30
times as the Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request as of a date not more than 15 days prior to the time
such information is furnished.
SECTION 4.02 Preservation and Disclosure of Securityholders
Lists. The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of registered Securities and shall otherwise comply with Section
312(a) of the Trust Indenture Act.
SECTION 4.03 Reports by the Issuer. The Parent Company shall:
(1) file with the Trustee, within 15 days after the Parent
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Parent
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Parent
Company is not required to file information, documents or reports
pursuant to either of such Sections , then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Parent Company, the Issuer or any
Subsidiary Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Parent
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 4.04 Reports by the Trustee. Within 60 days after
[February 15] of each year commencing with the first [February 15] after the
first issuance of Securities pursuant to this Indenture, the Trustee shall
transmit to the Holders of Securities, in the
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31
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
a brief report dated as of such [February 15] if required by Section 313(a) of
the Trust Indenture Act.
ARTICLE FIVE
Remedies Of The Trustee And Securityholders
On Event Of Default
SECTION 5.01 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means any one of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(b) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(c) failure on the part of the Issuer or any Guarantor duly to
observe or perform any other of the covenants or agreements on the part
of the Issuer or such Guarantor in the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series
a default in the performance or breach of which is elsewhere in this
Section specifically dealt with) or in this Indenture contained for a
period of 60 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer or such Guarantor remedy the
same, shall have been given by registered or certified mail, return
receipt requested, to the Issuer or such Guarantor by the Trustee, or
to the Issuer or such Guarantor and the Trustee by the holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of all series affected thereby; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer, any Guarantor or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer, such Guarantor or
such
<PAGE> 38
32
Subsidiary or for any substantial part of the Issuer's, such
Guarantor's or such Subsidiary's property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(e) the Issuer, any Guarantor or any Significant Subsidiary
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer, such Guarantor or such Subsidiary or
for any substantial part of the Issuer's, such Guarantor's or such
Subsidiary's property, or make any general assignment for the benefit
of creditors; or
(f) failure by the Issuer or any Guarantor to make any payment
at maturity, including any applicable grace period, in respect of
Indebtedness in an amount in excess of $5,000,000 or the equivalent
thereof in any other currency or composite currency and such failure
shall not have been waived and shall have continued for a period of 30
days after written notice thereof shall have been given by registered
or certified mail, return receipt requested, to the Issuer, such
Guarantor or such Subsidiary by the Trustee, or to the Issuer, such
Guarantor or such Subsidiary and the Trustee by the holders of not less
than 25% in aggregate principal amount of the Outstanding Securities
(treated as one class); or
(g) a default with respect to any Indebtedness, which default
results in the acceleration of Indebtedness in an amount in excess of
$5,000,000 in the aggregate or the equivalent thereof in any other
currency or composite currency without such Indebtedness having been
discharged or such acceleration having been cured, waived, rescinded or
annulled for a period of 30 days after written notice thereof shall
have been given by registered or certified mail, return receipt
requested, to the Issuer or any Guarantor by the Trustee, or to the
Issuer or such Guarantor and the Trustee by the holders of not less
than 25% in aggregate principal amount of the Outstanding Securities
(treated as one class); or
(h) any other Event of Default provided in the Board
Resolution or Board Resolutions or in the supplemental indenture, as
the case may be, under which such series of Securities is issued or in
the form of Security for such series;
provided that if any such failure, default or acceleration referred to in clause
(f) or (g) above shall cease or be cured, waived, rescinded or annulled, then
the Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
<PAGE> 39
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If an Event of Default describe in clause (a), (b), (c) or (h)
(if the Event of Default under clause (c) or (h), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (h) (if the Event of Default under
clause (c) or (h), as the case may be, is with respect to all series of
Securities then Outstanding), (f) or (g) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (e) occurs, the
entire principal (or, if any Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the terms thereof) of all
Securities then Outstanding, and interest accrued thereon, shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, in the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may
<PAGE> 40
34
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of
each such series, or of all the Securities (as the case may be), in each case
voting as a single class, then Outstanding, by written notice to the Issuer and
to the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon
maturity of the Securities of such series or upon any redemption or by
declaration or otherwise -- then upon demand of the Trustee, the Issuer will pay
to the Trustee for the benefit of the Holders of the Securities of such series
the whole amount that then shall have become due and payable on all Securities
of such series, and such Coupons, for principal or interest, as the case may be
(with interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and
<PAGE> 41
35
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
In case the Issuer or any Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer, or
any Guarantor or other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor under the
Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer, any
Guarantor or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or any Guarantor
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer, such Guarantor or other obligor upon the Securities, or
to the creditors or property of the Issuer, such Guarantor, or such other
obligor, the Trustee, irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer, any Guarantor or other obligor upon the
Securities, or to the creditors or property of the Issuer, such Guarantor or
such other obligor,
<PAGE> 42
36
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
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37
SECTION 5.03 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect 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 moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at the same rate
as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such series, then
to the payment of such principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to Maturity, or
of interest or Yield to Maturity over principal, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
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SECTION 5.04 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.06 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee to
institute such action or proceeding in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.09; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of the
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the
<PAGE> 45
39
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.07 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupons, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as otherwise provided in Section 2.09 with respect to
the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons, and except as provided in Section 5.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with all such series voting as a single class) at the time Outstanding 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 by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
of the Trustee shall determine that the action or proceedings so directed would
<PAGE> 46
40
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.01, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an Event of Default shall have occurred
and be continuing (voting as a single class) may on behalf of the Holders of all
such Securities waive any past Default or Event of Default described in Section
5.01 and its consequences, except a Default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Issuer,
the Guarantors, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within 45 days after the Trustee
obtains knowledge of the occurrence of a Default with respect to the Securities
of any series, give notice of all Defaults with respect to that series known to
the Trustee (i) if any Unregistered Securities of that series are then
Outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.09, at least once in an Authorized Newspaper in Luxembourg) and (ii) to all
Holders of Securities of such series in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, unless in each case such Defaults
shall have been cured before the mailing or publication of such notice; provided
that, except in the case of Default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking fund installment on such series, the Trustee shall be protected in
withholding such
<PAGE> 47
41
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (h) of Section 5.01 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (h) (if
the suit under clause (c) or (h) relates to all the Securities then
Outstanding), (d), (e), (f) or (g) of Section 5.01, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE SIX
Concerning The Trustee
SECTION 6.01 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of any Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
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.
<PAGE> 48
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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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof 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;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) 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 pursuant to Section 5.09 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject
to Section 315 of the Trust Indenture Act.
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SECTION 6.02 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable
<PAGE> 50
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expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Issuer upon demand; and
(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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons,
except that the Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Issuer are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.04 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not the Trustee or
such agent.
SECTION 6.05 Moneys Held by Trustee. Subject to the provisions of
Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of the law. Neither the Trustee nor any agent
of the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.06 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) as shall be agreed upon in writing by the Issuer and the Trustee
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable out-
<PAGE> 51
45
of-pocket expenses, disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor 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 this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Issuer, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or interest, if any, on particular
Securities or any Coupons.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(d) or (e), the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08 Corporate Trustee Required; Eligibility[; Conflicting
Interests].
[(a)] There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
and shall have a
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46
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
[(b) The following indenture[s] shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso contained
in Section 310(b) of the Trust Indenture Act: [______________________________]]
SECTION 6.09 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer at least 30 days prior to the
date of the proposed resignation and (i) if any Unregistered Securities of a
series affected are then Outstanding, by giving notice of such resignation to
the Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, and at least once in an
Authorized Newspaper in London (and, if required by Section 3.09, at least once
in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then Outstanding, by mailing notice of such resignation
to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c) of the Trust Indenture Act at such addresses as were
so furnished to the Trustee and (iii) by mailing notice of such resignation to
the Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 315(e) of the Trust Indenture Act on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
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47
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act with respect to any series of Securities
after written request therefor by the Issuer or by any Securityholder who
has been a bona fide Holder of a Security or Securities of such series for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.08 of this Indenture and Section 310(a) of the Trust
Indenture Act and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act, any Securityholder who has been a
bona fide Holder of a Security or Securities 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 removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and with the consent of the
Issuer, appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 7.01 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.09 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.10.
SECTION 6.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.09 shall execute and
deliver to the Issuer
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48
and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 10.04, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.10 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.08.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.10, the Issuer shall give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.09, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c) of the
Trust Indenture Act, by mailing
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49
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer for
such purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
appear on the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.09.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.08, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.09.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's
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Certificate of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
for such series and a Certificate of Authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 (determined as provided in Section 6.08 with respect to the Trustee)
and subject to supervision or examination by Federal or State authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.12 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 13.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time such compensation
as may agreed upon in writing by the Issuer and the Authenticating Agent. The
Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.08 and 7.03 shall be applicable to
any Authenticating Agent.
ARTICLE SEVEN
Concerning The Securityholders
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SECTION 7.01 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.02 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of
any jurisdiction authorized to take acknowledgments of deeds or administer
oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or other such officer. Where such execution is by
or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
person executing the same. The fact of the holding by any Holder of an
Unregistered Security of any series and the identifying number of such
Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust
company, bank, banker, or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the
Trustee to be satisfactory. Each such certificate shall be dated and shall
state that on the date thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such trust company,
bank, banker or recognized securities dealer by the person named in such
certificate. Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The holding
by the person named in any such certificate of any Unregistered Securities
of any series specified therein shall be presumed to continue for a period
of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the
Security of such series specified in such certificate shall be produced by
some other person, or (3) the Security of such series specified in such
certificate
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shall have ceased to be Outstanding. Subject to Sections 6.01 and 6.02, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or Securities for such
series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any
other manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of
the Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 7.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
SECTION 7.03 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notification of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
SECTION 7.04 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this
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Indenture, Securities which are owned by the Issuer or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are 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 Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Issuer shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above-described persons; and,
subject to Sections 6.01 and 6.02, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.05 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all Securities affected by such action.
<PAGE> 60
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ARTICLE EIGHT
Supplemental Indentures
SECTION 8.01 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer or
any Guarantor, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of the
Issuer or such Guarantor pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, provided that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons in any
material respect;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01
and 2.03;
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(f) to make any change that does not materially and adversely affect
the rights under this Indenture of any Holder of Securities hereunder;
(g) to add any Note Guarantee or release any note Guarantee pursuant to
the provisions thereof;
(h) to reflect a Subsidiary Guarantor ceasing to be liable on its Note
Guarantee because it is no longer a Subsidiary of the Issuer;
(i) 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
6.10; and
(j) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's owns rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Trustee may, from time
to time and at any time, 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 any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend
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the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in accordance
with the terms thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.01 or the amount thereof provable in
bankruptcy pursuant to Section 5.02, or alter the provisions of Section 13.11 or
13.12 or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holder
of each Security so affected.
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 Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a Board
Resolution (which Board Resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
Secretary or an Assistant Secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.01, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby
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are then Outstanding, to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c) of the Trust Indenture
Act, by mailing a notice thereof by first-class mail to such Holders at such
addressees as were so furnished to the Trustee and (iii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.09, at least
once in an Authorized Newspaper in Luxembourg), and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 8.03 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.01 and 6.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture.
SECTION 8.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 8.06 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article Eight shall conform to the
requirements of the Trust Indenture Act as then in effect.
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ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
SECTION 9.01 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. Neither the Issuer nor any Guarantor
shall merge or consolidate with any other Person or sell, lease or convey all or
substantially all of its assets to any other Person, unless (i) either the
Issuer or such Guarantor, as the case may be, shall be the continuing
corporation, or the successor corporation or the Person which acquires by sale,
lease or conveyance substantially all the assets of the Issuer or such Guarantor
shall be a corporation organized under the laws of the United States of America
or any State thereof or the District of Columbia and shall expressly assume all
of the obligations of the Issuer or such Guarantor, as the case may be, on all
of the Securities and Coupons, if any, or the Note Guarantee, as the case may
be, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer or such
Guarantor, as the case may be, such person or such successor corporation, shall
not, immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition
under this Indenture. Notwithstanding the foregoing, the Issuer or any other
Restricted Subsidiary may enter into any of the transactions described in the
preceding sentence with a Wholly Owned Restricted Subsidiary that is a Guarantor
and that (in the case of any Wholly Owned Restricted Subsidiary other than the
Issuer) has a positive net worth; provided that, in connection with any merger
or consolidation as described in the preceding sentence, no consideration (other
than Common Stock in the surviving Person, the Issuer or the Guarantor) shall be
issued or distributed to the stockholders of the Issuer or the Guarantor, in
which case the provisions of this Section 9.01 shall be deemed to be complied
with.
SECTION 9.02 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or such Guarantor, as the case may
be, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which together with any Coupons appertaining thereto
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously shall
have been signed and delivered by the Officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued together with any Coupons appertaining thereto shall in
all respects have the same legal rank and benefit under this
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Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phrasing and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.03 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE TEN
Satisfaction and Discharge Of Indenture;
Unclaimed Moneys
SECTION 10.01 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to be paid
the principal of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than Securities
of such series and Coupons appertaining thereto which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.09) as
and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities of such series and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09) or (c) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under
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arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities of such Series and of Coupons appertaining thereto and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of the Issuer under
Section 3.02) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Issuer agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the immediately preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (a)
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below, the Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the Coupons appertaining
thereto on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series and Coupons appertaining thereto shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Section 3.02) and the Trustee,
at the expense of the Issuer, shall at the Issuer's request, execute proper
instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such and in
such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series and Coupons appertaining thereto
will not recognize income, gain or loss for Federal
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income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
(C) The Issuer shall be released from its obligations under Sections
3.05, 3.06, 3.07, 4.03 and 9.01 and clause (c) of Section 5.01 with respect to
Sections 3.05, 3.06, 3.07, 4.03 and 9.01, and clauses (f) and (g) of Section
5.01 shall be deemed not to be Events of Default, in each case with respect to
the Securities of any series, and any Coupons appertaining thereto, Outstanding
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 any Series, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in such Section, whether directly or indirectly by reason
of any reference elsewhere herein to such Section or by reasons of any reference
in such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 5.01,
but the remainder of this Indenture and such Securities and Coupons shall be
unaffected thereby. The following shall be the conditions to application of this
subsection C of this Section 10.01:
(a) The Issuer has irrevocably deposited or caused to be deposited
with the Trustee 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 the Securities of such series and
coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be made in Dollars,
U.S. Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest on
all Securities of such series and Coupons appertaining thereto and (B) any
mandatory sinking fund payments on the day on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities
of such series.
(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
shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 5.01(d) and (e) are concerned, at any time during the
period ending on the
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91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(c) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 6.08 and for purposes of the
Trust Indenture Act with respect to any securities of the Issuer.
(d) Such 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 Issuer is a party or by which it is
bound.
(e) Such covenant defeasance shall not cause any Securities then
listed on the registered national securities exchange under the Exchange Act
to be delisted.
(f) The Issuer shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel to the effect that the Holders of the
Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(g) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by
this provision have been complied with.
SECTION 10.02 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.03 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or
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paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 10.04 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series or Coupons attached thereto and not applied but remaining unclaimed
for two years after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer cause to be published once, in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and if required by Section 3.09, once
in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and
that, after a date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer.
SECTION 10.05 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
Redemption Of Securities And Sinking Funds
SECTION 11.01 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
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SECTION 11.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c) of the Trust Indenture
Act, shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption, to such Holders at such addresses as were so furnished to
the Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such purpose).
Notice of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and in an Authorized Newspaper in London (and, if required by Section
3.09, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designed for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security or a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
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On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 60 days (or such shorter period as shall be
satisfactory to the Trustee) prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities to be redeemed.
In case of a redemption at the election of the Issuer prior to the expiration of
any restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select Securities of such series to be redeemed in whole or in
part in compliance with the requirements, as certified to the Trustee by the
Issuer, of the principal national securities exchange, if any, on which
Securities of such series are listed, or if Securities of such series are not
listed on a national securities exchange, on a pro rata basis, by lot or by such
other method as the Trustee in its sole discretion shall deem fair and
appropriate. Securities may be redeemed in part in multiplies equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series 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 of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 11.03 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
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together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption, provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and each Guarantor and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save
each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer and
each Guarantor shall execute and the Trustee shall authenticate and deliver to
or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 11.05 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
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In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 13.05) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee which such Officers' Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officers'
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent
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thereof in any Foreign Currency or ECU) or a lesser sum in Dollars (or the
equivalent thereof in any Foreign Currency or ECU) if the Issuer shall so
request with respect to the Securities of any particular series, such cash shall
be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000 (or the equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency or ECU) is
available. The Trustee shall select, in the manner provided in Section 11.02,
for redemption on such sinking fund payment a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.02 (and with the
effect provided in Section 11.03) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer
<PAGE> 76
70
a sum sufficient for such redemption. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE TWELVE
Guarantee of Securities
SECTION 12.01 Note Guarantee. Subject to the provisions of this Article
Twelve, each of the Guarantors hereby, jointly and severally, fully,
unconditionally and irrevocably Guarantees to each Holder of Securities
hereunder and to the Trustee on behalf of the Holders: (i) the due and punctual
payment of the principal of and interest on each Security, when and as the same
shall become due and payable, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Securities, to the extent lawful, and the due and
punctual performance of all other obligations of the Issuer to the Holders or
the Trustee, all in accordance with the terms of such Security and this
Indenture and (ii) in the case of any extension of time of payment or renewal of
any Securities or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at maturity, by acceleration or otherwise, subject, however, in the
case of clauses (i) and (ii) above, to the limitations set forth in the next
succeeding paragraph.
Each Note Guarantee shall rank equally and pari passu with all other
unsecured and unsubordinated debt of the issuer of such Note Guarantee.
Each Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the Guarantee by such
Guarantor pursuant to its Note Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the United States Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders and
such Guarantor hereby irrevocably agree that the obligations of such Guarantor
under its Note Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guarantor
(including, but not limited to, the Guarantor Senior Indebtedness of such
Guarantor) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the
<PAGE> 77
71
obligations of such other Guarantor under its Note Guarantee or pursuant to the
following paragraph, result in the obligations of such Guarantor under its Note
Guarantee not constituting such fraudulent transfer or conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its Note
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuer's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Note Guarantee. "Adjusted Net Assets" of such Guarantor at
any date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Note Guarantee, of such Guarantor at such date
and (y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving effect
to any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Note Guarantee of such Guarantor),
excluding debt in respect of its Note Guarantee, as they become absolute and
matured.
Each of the Guarantors hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Issuer, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other Lien upon any
property subject thereto or exhaust any right or take any action against the
Issuer or any other Person, any right to require a proceeding first against the
Issuer, the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever (except as
specified above), and covenants that this Note Guarantee will not be discharged
as to any such Security except by payment in full of the principal thereof and
interest thereon and as provided in Section 10.01. The maturity of the
obligations Guaranteed hereby may be accelerated as provided in Article Five for
the purposes of this Article Twelve. In the event of any declaration of
acceleration of such obligations as provided in Article Five, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Article Twelve. In addition, without limiting
the foregoing provisions, upon the effectiveness of an acceleration under
Article Five, the Trustee shall promptly make a demand for payment on the
Securities under the Note Guarantee provided for in this Article Twelve.
<PAGE> 78
72
The obligations of each Guarantor under this Note Guarantee are
independent of the obligations Guaranteed by such Guarantor hereunder, and a
separate action or actions may be brought and prosecuted by the Trustee on
behalf of, or by, the Holders, subject to the terms and conditions set forth in
this Indenture, against a Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Issuer or whether the Issuer is joined
in any such action or actions.
If the Trustee or the Holder is required by any court or otherwise to
return to the Issuer or any Guarantor, or any custodian, receiver, liquidator,
trustee, sequestrator or other similar official acting in relation to Issuer or
such Guarantor, any amount paid to the Trustee or such Holder in respect of a
Security, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each of the Guarantors further agrees, to
the fullest extent that it may lawfully do so, that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, the maturity of the
obligations Guaranteed hereby may be accelerated as provided in Article Five
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed hereby.
Each of the Guarantors hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Issuer or any other
Guarantor that arise from the existence, payment, performance or enforcement of
its obligations under this Note Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the Holders
against the Issuer or any Guarantor or any collateral which any such Holder or
the Trustee on behalf of such Holder hereafter acquires, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the Issuer
or a Guarantor, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to a Guarantor in violation of the preceding
sentence and the principal of and accrued interest on the Securities shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders,
and shall forthwith be paid to the Trustee for the benefit of the Holders to be
credited and applied upon the principal of and accrued interest on the
Securities. Each of the Guarantors acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this Indenture
and that the waivers set forth in this Section 12.01 are knowingly made in
contemplation of such benefits.
The Note Guarantee set forth in this Section 12.01 shall not be valid
or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
<PAGE> 79
73
SECTION 12.02 Obligations Unconditional. Nothing contained in this
Article Twelve or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among any Guarantor and the holders of the Securities,
the obligation of such Guarantor, which is absolute and unconditional, upon
failure by the Issuer to pay to the holders of the Securities the principal of
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of such Guarantor, nor shall anything herein
or therein prevent any Holder or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture.
Without limiting the foregoing, nothing contained in this Article
Twelve will restrict the right of the Trustee or the Holders to take any action
to declare the Note Guarantee to be due and payable prior to the maturity of any
Securities or series of Securities pursuant to Section 5.01 or to pursue any
rights or remedies hereunder.
SECTION 12.03 Release of Note Guarantees. Upon the sale by the Issuer
or any Subsidiary of all or substantially all of the assets of any Subsidiary
Guarantor or all of the Capital Stock of any Subsidiary Guarantor in a
transaction constituting an Asset Sale that does not otherwise violate this
Indenture, such Guarantor (in the event of a sale or other disposition of all of
the Capital Stock of such Subsidiary Guarantor) or the corporation acquiring
such assets (in the event of a sale or other disposition of all or substantially
all of the assets of such Subsidiary Guarantor) shall be automatically and
unconditionally released and discharged of its Note Guarantee obligations.
SECTION 12.04 Notice to Trustee. A Guarantor shall give prompt written
notice to the Trustee of any fact known to such Guarantor which would prohibit
the making of any payment to or by the Trustee in respect of the Note Guarantee
pursuant to the provisions of this Article Twelve.
SECTION 12.05 Supplemental Indenture. Subject to the requirements of
Article Eight, any supplemental indenture required to add a Note Guarantee
pursuant to Section 3.08 shall be executed by the Issuer, each Guarantor, the
Trustee and the Subsidiary providing such guaranty.
SECTION 12.06 This Article not to Prevent Events of Default. The
failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Twelve will not be
construed as preventing the occurrence of an Event of Default.
<PAGE> 80
74
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer, or director, as such, of the Issuer or of any successor, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the Coupons
appertaining thereto.
SECTION 13.02 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
SECTION 13.03 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not. All the covenants, stipulations, promises and agreements in
this Indenture contained by or in behalf of the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.04 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer or to or on any
Guarantor may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to Protection One
Alarm Monitoring, Inc., 3900 S.W. Murray Blvd., Beaverton, Oregon 97005,
Attention: Chief Financial Officer. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the
<PAGE> 81
75
Trustee is filed by the Trustee with the Issuer) to ____________________________
____________________________________, Attention: ______________________________.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at such Holder's last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory of the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 13.05 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
<PAGE> 82
76
Any certificate, statement or opinion of an Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such Officer knows that the
certificates or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an Officer or Officers of the Issuer or upon
certificates of public officials.
Any certificate, statement or opinion of an Officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 13.06 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 13.07 Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control.
SECTION 13.08 Governing Law. This Indenture and each Security and
Coupon shall be deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the internal laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 13.09 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
<PAGE> 83
77
SECTION 13.10 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.
SECTION 13.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 13.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture including without limitation any determination
contemplated in Section 5.01(f) or (g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 13.12 Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the
<PAGE> 84
78
rate at which in accordance with normal banking procedures the Trustees could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
[Signature page follows]
<PAGE> 85
S-1
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 date first written above.
PROTECTION ONE ALARM MONITORING, INC.,
as Issuer
By
-----------------------------------
Name:
Title:
PROTECTION ONE, INC.,
as Guarantor
By
-----------------------------------
Name:
Title:
[NAME OF TRUSTEE],
as Trustee
By
-----------------------------------
Name:
Title:
<PAGE> 1
Exhibit 4.2
================================================================================
PROTECTION ONE ALARM MONITORING, INC.,
as Issuer
PROTECTION ONE, INC.,
as Parent Company
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
----------
Subordinated Debt Shelf Indenture
Dated as of August 29, 1996
----------
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
Section of the Trust Indenture Act Indenture Sections
- --------------------------------------------------------------------------------
<S> <C>
310 (a)(1) ........................................... 6.08
(a)(2) ........................................... 6.08
(a)(3) ........................................... 15.07
(a)(4) ........................................... Inapplicable
(a)(5) ........................................... 15.07
(b) .............................................. 6.08; 6.09
(c) .............................................. Inapplicable
311 .................................................. 6.04
312 .................................................. 4.01; 4.02
313 (a) .............................................. 4.04
(b)(i) ........................................... Inapplicable
(b)(2) ........................................... 4.04
(c) .............................................. 4.04
314 (a) .............................................. 4.03
(b) .............................................. Inapplicable
(c)(1) ........................................... 15.05
(c)(2) ........................................... 15.05
(c)(3) ........................................... Inapplicable
(d) .............................................. Inapplicable
(e) .............................................. 15.05
(f) .............................................. Inapplicable
315 (a) .............................................. 6.01
(b) .............................................. 5.11
(c) .............................................. 6.01
(d) .............................................. 6.01
(e) .............................................. 5.12
316 (a)(1) ........................................... 5.09
(a)(2) ........................................... Inapplicable
(b) .............................................. 5.07
(c) .............................................. 15.07
317 (a) .............................................. 5.02
(b) .............................................. 3.04
318 (a) .............................................. 15.07
(b) .............................................. 15.07
(c) .............................................. 15.07
- --------------------------------------------------------------------------------
</TABLE>
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE
Definitions ........................... 1
SECTION 1.01 Certain Terms Defined ...................................... 1
ARTICLE TWO
Securities ............................ 11
SECTION 2.01 Forms Generally ............................................ 11
SECTION 2.02 Form of Trustee's Certificate of Authentication ............ 11
SECTION 2.03 Amount Unlimited; Issuable in Series ....................... 12
SECTION 2.04 Authentication and Delivery of Securities .................. 15
SECTION 2.05 Execution of Securities .................................... 18
SECTION 2.06 Certificate of Authentication .............................. 19
SECTION 2.07 Denomination and Date of Securities; Payments of Interest .. 19
SECTION 2.08 Registration, Transfer and Exchange ........................ 20
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities .. 23
SECTION 2.10 Cancellation of Securities; Destruction Thereof ............ 24
SECTION 2.11 Temporary Securities ....................................... 25
ARTICLE THREE
Covenants Of The Issuer ..................... 25
SECTION 3.01 Payment of Principal and Interest .......................... 25
SECTION 3.02 Offices for Payments, etc .................................. 26
SECTION 3.03 Appointment to Fill a Vacancy in Office of Trustee ......... 27
SECTION 3.04 Paying Agents .............................................. 27
SECTION 3.05 Notice of Defaults ......................................... 28
SECTION 3.06 Compliance Certificates .................................... 29
SECTION 3.07 Issuance of Subsidiary Guarantees by Restricted
Subsidiaries ............................................... 29
SECTION 3.08 Luxembourg Publications .................................... 29
ARTICLE FOUR
Securityholders Lists And Reports By The Issuer And The Trustee . 30
SECTION 4.01 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders ............................... 30
SECTION 4.02 Preservation and Disclosure of Securityholders Lists ....... 30
SECTION 4.03 Reports by the Issuer ...................................... 30
SECTION 4.04 Reports by the Trustee ..................................... 31
</TABLE>
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ARTICLE FIVE
Remedies Of The Trustee And Securityholders On Event Of Default . 31
SECTION 5.01 Event of Default Defined; Acceleration of Maturity;
Waiver of Default .......................................... 31
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt ....................................................... 34
SECTION 5.03 Application of Proceeds .................................... 37
SECTION 5.04 Suits for Enforcement ...................................... 38
SECTION 5.05 Restoration of Rights on Abandonment of Proceedings ........ 38
SECTION 5.06 Limitations on Suits by Securityholders .................... 38
SECTION 5.07 Unconditional Right of Securityholders to Institute Certain
Suits ...................................................... 39
SECTION 5.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default .......................................... 39
SECTION 5.09 Control by Holders of Securities ........................... 40
SECTION 5.10 Waiver of Past Defaults .................................... 40
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances ...................................... 41
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs ...................................................... 41
ARTICLE SIX
Concerning The Trustee ..................... 42
SECTION 6.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default ........................................... 42
SECTION 6.02 Certain Rights of the Trustee .............................. 43
SECTION 6.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof .............. 44
SECTION 6.04 Trustee and Agents May Hold Securities or Coupons;
Collections, etc ........................................... 44
SECTION 6.05 Moneys Held by Trustee ..................................... 45
SECTION 6.06 Compensation and Indemnification of Trustee and Its Prior
Claim ...................................................... 45
SECTION 6.07 Right of Trustee to Rely on Officers' Certificate, etc ..... 46
SECTION 6.08 Corporate Trustee Required; Eligibility; Conflicting
Interests .................................................. 46
SECTION 6.09 Resignation and Removal; Appointment of Successor
Trustee .................................................... 46
SECTION 6.10 Acceptance of Appointment by Successor Trustee ............. 48
</TABLE>
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SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee ........................................ 49
SECTION 6.12 Appointment of Authenticating Agent ........................ 50
ARTICLE SEVEN
Concerning The Securityholders ................. 51
SECTION 7.01 Evidence of Action Taken by Securityholders ................ 51
SECTION 7.02 Proof of Execution of Instruments and of Holding of
Securities ................................................. 51
SECTION 7.03 Holders to be Treated as Owners ............................ 53
SECTION 7.04 Securities Owned by Issuer Deemed Not Outstanding .......... 53
SECTION 7.05 Right of Revocation of Action Taken ........................ 54
ARTICLE EIGHT
Supplemental Indentures ..................... 54
SECTION 8.01 Supplemental Indentures Without Consent of
Securityholders ............................................ 54
SECTION 8.02 Supplemental Indentures With Consent of Securityholders .... 56
SECTION 8.03 Effect of Supplemental Indenture ........................... 57
SECTION 8.04 Documents to Be Given to Trustee ........................... 58
SECTION 8.05 Notation on Securities in Respect of Supplemental
Indentures 58
SECTION 8.06 Conformity with Trust Indenture Act ........................ 58
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance ............ 58
SECTION 9.01 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions ................... 58
SECTION 9.02 Successor Corporation Substituted .......................... 59
SECTION 9.03 Opinion of Counsel Delivered to Trustee .................... 59
ARTICLE TEN
Satisfaction and Discharge Of Indenture; Unclaimed Moneys .... 60
SECTION 10.01 Satisfaction and Discharge of Indenture .................... 60
SECTION 10.02 Application by Trustee of Funds Deposited for Payment
of Securities .............................................. 64
SECTION 10.03 Repayment of Moneys Held by Paying Agent ................... 64
</TABLE>
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SECTION 10.04 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years .................................... 64
SECTION 10.05 Indemnity for U.S. Government Obligations .................. 65
ARTICLE ELEVEN
Redemption Of Securities And Sinking Funds ............ 65
SECTION 11.01 Applicability of Article ................................... 65
SECTION 11.02 Notice of Redemption; Partial Redemptions .................. 65
SECTION 11.03 Payment of Securities Called for Redemption ................ 67
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption ................................... 68
SECTION 11.05 Mandatory and Optional Sinking Funds ....................... 68
ARTICLE TWELVE
Subordination of Securities ................... 70
SECTION 12.01 Securities and Coupons Subordinated to Senior
Indebtedness ............................................... 70
ARTICLE THIRTEEN
Guarantee of Securities ..................... 71
SECTION 13.01 Note Guarantee ............................................. 71
SECTION 13.02 Obligations Unconditional .................................. 73
</TABLE>
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SECTION 13.03 Release of Note Guarantees ................................. 74
SECTION 13.04 Notice to Trustee .......................................... 74
SECTION 13.05 Supplemental Indenture ..................................... 74
SECTION 13.06 This Article not to Prevent Events of Default .............. 74
ARTICLE FOURTEEN
Subordination of Note Guarantees ................. 75
SECTION 14.01 Securities and Coupons Subordinated to Guarantor Senior
Indebtedness ............................................... 75
ARTICLE FIFTEEN
Miscellaneous Provisions .................... 75
SECTION 15.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability .................... 75
SECTION 15.02 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons .......................... 75
SECTION 15.03 Successors and Assigns of Issuer Bound by Indenture ........ 75
SECTION 15.04 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons ..................................... 76
SECTION 15.05 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein ......................... 76
SECTION 15.06 Payments Due on Saturdays, Sundays and Holidays ............ 77
</TABLE>
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SECTION 15.07 Conflict of Any Provision of Indenture with Trust
Indenture Act .............................................. 77
SECTION 15.08 Governing Law .............................................. 78
SECTION 15.09 Counterparts ............................................... 78
SECTION 15.10 Effect of Headings ......................................... 78
SECTION 15.11 Securities in a Foreign Currency or in ECU ................. 78
SECTION 15.12 Judgment Currency .......................................... 79
</TABLE>
(vi)
<PAGE> 9
THIS INDENTURE, dated as of August 29, 1996 between PROTECTION
ONE ALARM MONITORING, INC., a Delaware corporation (the "Issuer"), PROTECTION
ONE, INC., a Delaware corporation (the "Parent Company"), and STATE STREET BANK
AND TRUST COMPANY, a banking corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer intends to issue from time to time
unsecured debentures, notes or other evidences of indebtedness in one or more
series (the "Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer, the Parent Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons,
if any, appertaining thereto as follows:
ARTICLE ONE
Definitions
SECTION 1.01 Certain Terms Defined. The following terms
(except as otherwise expressly provided in this Indenture or in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.03 or unless the context otherwise clearly requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms, as
amended, used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended, or the definitions of which in the Securities Act of 1933, as
amended, are referred to in the Trust Indenture Act of 1939, as amended,
including terms defined therein by reference to the Securities Act of 1933, as
amended, (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall have
the
<PAGE> 10
2
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" or "GAAP"
means such accounting principles as are generally accepted at the time of any
computation. 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. The terms defined in this Article have
the meanings assigned to then in this Article and include the plural as well as
the singular.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or lease-back transactions) in one
transaction or a series of related transactions by the Parent Company or any of
its Subsidiaries to any Person other than the Parent Company or any Subsidiary
of (i) all or any of the Capital Stock of any Subsidiary, (ii) all or
substantially all of the property and assets of an operating unit or business of
the Parent Company or any of its Subsidiaries or (iii) any other property and
assets of the Parent Company or any of its Subsidiaries outside the ordinary
course of business of the Parent Company or such Subsidiary; provided that sales
or other dispositions of inventory, receivables and other current assets shall
not be included within the meaning of "Asset Sale."
"Authenticating Agent" shall have the meaning set forth in
Section 6.12.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means the Board of Directors of the
Parent Company or the Board of Directors of the Issuer, as the case may be, or
any committee of either such Board of Directors, as the case may be, duly
authorized to act under this Indenture.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary of the Parent Company or by the Secretary of the
Issuer, as the case may be, to have been duly adopted or consented to by the
Board of Directors of the Parent Company or the Board of Directors of the
Issuer, as the case may be, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
<PAGE> 11
3
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at Two International Place, 4th Floor, Boston,
Massachusetts 02110 and for the purpose of Section 3.02 hereof is located at 61
Broadway, Concourse Level, New York, New York 10006.
"Coupon" means any interest coupon appertaining to a Security.
<PAGE> 12
4
"covenant defeasance" shall have the meaning set forth in
Section 10.01(C).
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.03 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
Registered Global Securities of that series.
<PAGE> 13
5
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Funding Guarantor" shall have the meaning set forth in
Section 13.01.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means the Parent Company and each of the Parent
Company's Subsidiaries that becomes a guarantor of the Securities pursuant to
the provisions of this Indenture until a successor replaces any such party
pursuant to Article Nine of this Indenture or until any such party is released
from such guaranty pursuant to the provisions of this Indenture, and thereafter
means such parties and such successors.
"Guarantor Senior Indebtedness" means with respect to a
series of Securities and Coupons, if any, "Guarantor Senior Indebtedness" as
defined in the Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 2.03 establishing such series
of Securities and Coupons, if any.
<PAGE> 14
6
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means obligations (other than the Securities of
such series or non-recourse obligations) of, or guaranteed or assumed by, the
Issuer, any Guarantor or any Subsidiary for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments (except, with respect to
the Issuer, the promissory notes issued by the Issuer in favor of Ion Leasing
(which obligations have been defeased by a cash deposit in a segregated trust
account)).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six)
Protection One Alarm Monitoring, Inc., a Delaware corporation and, subject to
Article Nine, its successors and assigns.
"Issuer Order" means a written request or order signed in the
name of the Issuer (i) by its Chairman, its President, an Executive Vice
President or a Vice President and (ii) by its Chief Financial Officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; provided, however, that such written request or order
may be signed by any two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors listed in such
clause (i) and one of the officers listed in clause (ii) above.
"Judgment Currency" shall have the meaning set forth in
Section 13.12.
<PAGE> 15
7
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any affiliate of the
seller, or any agreement to give any security interest).
"Note Guarantee" means, with respect to each Guarantor, the
unconditional Guarantee of the Securities by such Guarantor, pursuant to Article
Twelve.
"Officer" means, with respect to the Issuer, (i) the Chairman
of the Board, the President, any Executive Vice President, any Vice President,
the Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer,
or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to Section 314(a)(4) of the Trust Indenture Act)
shall include the statements provided for in Section 314(e) of the Trust
Indenture Act and in Section 13.05 hereof.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Issuer satisfactory to the
Trustee. Each such Opinion of Counsel shall include the statements provided for
in Section 314(e) of the Trust Indenture Act and in Section 13.05 hereof.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
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 5.01.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided
for in Section 10.01) in the necessary amount shall have been deposited
in trust with the Trustee or with any
<PAGE> 16
8
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent), provided
that if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes 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 5.01.
"Parent Company" means the party named as such in the first
paragraph of this Indenture, which is a Guarantor of the Securities, until a
successor replaces it pursuant to Article Five of this Indenture and thereafter
means such successor.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
<PAGE> 17
9
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" shall have the meaning set forth in Section
2.07.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.04, and bearing the legend prescribed
in Section 2.04.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 13.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means the Issuer and any Subsidiary of
the Issuer which is not designated an Unrestricted Subsidiary by the Parent
Company.
<PAGE> 18
10
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means with respect to a series of
Securities and Coupons, if any, "Senior Indebtedness" as defined in the Board
Resolutions, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.03 establishing such series of Securities and Coupons, if
any.
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of the Parent Company or the Issuer that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Parent Company,
accounted (or, on a pro forma basis, would have accounted) for more than 10% of
the consolidated revenues of the Parent Company and its Restricted Subsidiaries
or (ii) as of the end of such fiscal year, was the owner (or, on a pro forma
basis, would have been the owner) of more than 10% of the consolidated assets of
the Parent Company and its Restricted Subsidiaries, all as set forth on the most
recently available consolidated financial statements of the Parent Company for
such fiscal year.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
"Subsidiary Guarantors" means each of the Parent Company's
Subsidiaries that becomes a guarantor of the Securities pursuant to the
provisions of this Indenture.
"Trust Indenture Act" (except as otherwise provided in
Section 8.07) means the Trust Indenture Act of 1939, as amended, as in force at
the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also 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 the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
<PAGE> 19
11
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Parent Company (other than the Issuer) that is not also a Subsidiary of the
Issuer, (ii) any Subsidiary of the Issuer that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of the
Parent Company in the manner provided below and (iii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Parent Company may
designate any Subsidiary of the Issuer (including any newly acquired or newly
formed Subsidiary of the Issuer), to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
or assets of, the Parent Company or any Restricted Subsidiary; provided that
either (A) the Subsidiary to be so designated has total assets of $1,000 or less
or (B) if such Subsidiary has assets greater than $1,000, such designation would
be permitted under the Indenture dated as of May 17, 1995 (the "Discount Notes
Indenture") between the Issuer, the Parent Company, and State Street Bank and
Trust Company, as Trustee, as then in effect. If at the time in question the
notes issued pursuant to the Discount Notes Indenture (the "Discount Notes")
have been paid in full or the Discount Notes Indenture shall have been otherwise
discharged, no subsidiary with total assets of more than $1,000 may be
designated an Unrestricted Subsidiary unless such Subsidiary could have been
designated an Unrestricted Subsidiary under the Discount Notes Indenture as in
effect at the time the Discount Notes were repaid in full or the Discount Notes
Indenture was otherwise discharged. The Board of Directors of the Parent Company
may designate any Unrestricted Subsidiary (other than a Subsidiary of the Parent
Company that is not a Subsidiary of the Issuer) to be a Restricted Subsidiary;
provided that immediately after giving effect to such designation no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors of the Parent Company shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions. As of the date hereof, the
Parent Company has no Subsidiaries that, upon the consummation of this offering,
will be Unrestricted Subsidiaries.
"U.S. Government Obligations" shall have the meaning set forth
in Section 10.01(A).
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, such Subsidiary if all of the outstanding Capital Stock or other similar
equity ownership interests in such Subsidiary (other than any director's
qualifying shares or investments by foreign nationals mandated by applicable
law) is owned by such Person or one or more Wholly Owned Subsidiaries of such
Person.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
<PAGE> 20
12
ARTICLE TWO
Securities
SECTION 2.01 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) 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 imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
Officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the Officers executing such Securities
and Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
SECTION 2.02 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
,
-----------------------------------
as Trustee
By
---------------------------------
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
certificate of authentication to be borne by the Securities of each such series
shall be substantially as follows:
<PAGE> 21
13
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
,
-----------------------------------
as Authenticating Agent
By
---------------------------------
Authorized Officer"
SECTION 2.03 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 and unless
otherwise provided in a Board Resolution, Officers' Certificate or indenture
supplemental hereto as provided pursuant to the next sentence, each such series
shall rank equally and pari passu with the Securities of each other series, but
all Securities issued hereunder shall be subordinate and junior in right of
payment, to the extent and in the manner set forth in Article Twelve, to all
Senior Indebtedness of the Issuer. There shall be established in or pursuant to
one or more Board Resolutions (and to the extent established pursuant to rather
than set forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the Series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11, 8.05 or
11.03);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable;
<PAGE> 22
14
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case
of Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.02);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within which,
the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking
fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods
within which and any terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, 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;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of such
series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities
are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
<PAGE> 23
15
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities
(with or without Coupons), or any combination of the foregoing, and
restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.08, the terms upon which Unregistered Securities
of any series may be exchanged for Registered Securities of such series
and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who
is not a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have
the option to redeem such Securities rather than pay such additional
amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(19) the terms, if any, on which Securities of the series may
be convertible into or exchangeable for stock or other securities of
the Parent Company or any other Person, any specific terms relating to
the adjustment thereof and the period during which such Securities may
be so convertible or exchangeable;
(20) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(21) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(22) whether such series of Securities will rank senior to
Securities of other series issued hereunder;
<PAGE> 24
16
(23) any modification of the provisions regarding
subordination set forth in Article Twelve with respect to such series;
(24) any deletions from, modifications of or additions to any
of the definitions set forth in Article One with respect to the
Securities of such series;
(25) any other events of default or covenants with respect to
the Securities of such series; and
(26) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to such series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be provided
by or pursuant to the Board Resolution or Officers' Certificate referred to
above or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
SECTION 2.04 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer and each Guarantor to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures acceptable to
the Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate and any
other terms of the Securities of such series and Coupons, if any, appertaining
thereto shall be determined by or pursuant to such Issuer Order and procedures.
If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and 4
below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.01)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
<PAGE> 25
17
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities
of such series shall be determined by an Issuer Order or pursuant to
such procedures and (d) if provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly authorized agent or
agents, which oral instructions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.01 and 2.03
by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form
or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.01 and 2.03 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
<PAGE> 26
18
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and each Guarantor and
authenticated by the Trustee in accordance with the provisions
of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of
the Issuer, enforceable in accordance with their respective
terms, and will be entitled to the benefits of this Indenture;
and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or, to the best of such
counsel's knowledge, any agreement or other instrument binding
upon the Issuer or any of its subsidiaries that is material to
the Issuer and its subsidiaries, considered as one enterprise,
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any
subsidiary, and no consent, approval or authorization of any
governmental body or agency is required for the performance by
the Issuer of its obligations under the Securities and
Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of
California and the federal law of the United States, upon opinions of other
counsel (copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory to the Trustee, in which case the opinion shall
state that such counsel believes such counsel and the Trustee are entitled so to
rely. Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to
<PAGE> 27
19
personal liability to existing Holders or would affect the Trustee's own rights,
duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that
the Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer and each Guarantor shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and deliver one or more Registered 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 issued
and not yet cancelled, (ii) shall be registered in the name of the Depositary
for such Registered 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."
Each Depositary designated pursuant to Section 2.03 must, at
the time of its designation and at all times while it serves a Depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
SECTION 2.05 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by an Officer listed in clause (i) of the definition of Officer herein
and attested by its Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any Officer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such Officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such Officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper Officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an Officer.
<PAGE> 28
20
SECTION 2.06 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory for
any purpose until the certificate of authentication on the Security to which
such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
SECTION 2.07 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
Board Resolution or Board Resolutions referred to in Section 2.03. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.03.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered
<PAGE> 29
21
Securities of such series established as contemplated by Section 2.03, or, if no
such date is so established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08 Registration, Transfer and Exchange. The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.02 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee (if the
Trustee is not the registrar).
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.02, the Issuer and each Guarantor shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
the same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the Issuer that
shall be maintained for such purpose in accordance with Section 3.02, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more
<PAGE> 30
22
than one authorized denomination, except as otherwise specified pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.02 or as specified pursuant to Section 2.03, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided.
Unless otherwise specified pursuant to Section 2.03, Registered Securities of
any series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer and each
Guarantor shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer provided for in
this Indenture shall be promptly cancelled and disposed of by the Trustee and
the Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered 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 any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is
<PAGE> 31
23
unwilling or unable to continue as Depositary for such Registered Securities or
if at any time the Depositary for such Registered Securities shall no longer be
eligible under Section 2.04, the Issuer shall appoint a successor Depositary
eligible under Section 2.04 with respect to such Registered Securities. If a
successor Depositary for such Registered Securities eligible under Section 2.04
is not appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.03 that such Registered Securities be represented by one or more
Registered Global Securities shall no longer be effective and the Issuer and
each Guarantor will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
series, will 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 Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer and each
Guarantor will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
series, will 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 Registered
Global Security or Securities representing such Registered Securities, in
exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer and each Guarantor shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
<PAGE> 32
24
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the Trustee
or an agent of the Issuer or the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.08 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, each of the Issuer and each Guarantor in its discretion may
execute, and upon the written request of any Officer of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen, with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons to the
Trustee or such agent.
<PAGE> 33
25
Upon the issuance of any substitute Security or Coupon, the
Issuer 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 or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon) if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer and each Guarantor, whether or not the
destroyed, lost or stolen Security or Coupon shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such series duly
authenticated and delivered hereunder. All Securities and Coupons shall be held
and owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and Coupons and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
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SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer and each Guarantor may execute
and the Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series shall
be issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer and each
Guarantor with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and each Guarantor and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
and each Guarantor shall execute and shall furnish definitive Securities of such
series and thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be
maintained by the Issuer for that purpose pursuant to Section 3.02 and, in the
case of Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.03. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.03 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE THREE
Covenants Of The Issuer
SECTION 3.01 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or
<PAGE> 35
27
places, at the respective times and in the manner provided in such Securities
and in the Coupons, if any, appertaining thereto and in this Indenture. The
interest on Securities with Coupons attached (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
upon presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any temporary
Unregistered Security provides that interest thereon may be paid while such
Security is in temporary form, the interest on any such temporary Unregistered
Security (together with any additional amounts payable pursuant to the terms of
such Security) shall be paid, as to the installments of interest evidenced by
Coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Securities for notation thereon of the payment of such interest, in each
case subject to any restrictions that may be established pursuant to Section
2.03. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to or upon the written order of the Holders thereof and, at the option of the
Issuer, may be paid by wire transfer or by mailing checks for such interest
payable to or upon the written order of such Holders at their last addresses as
they appear on the registry books of the Issuer.
An installment of principal of or interest on any series of
Securities shall be considered paid on the date due if a sum sufficient to pay
such principal or interest so becoming due has been deposited with the Trustee
or paying agent (or if the Issuer is acting as its own paying agent, has been
set aside, segregated and held in trust) for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto, in accordance
with Section 3.04.
SECTION 3.02 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, the Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Registered Securities of
each series may be presented for payment, where the Securities of each series
may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.03 and where the Registered Securities of each
series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without adverse
<PAGE> 36
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tax consequences to the Issuer. Notwithstanding the foregoing, payments in
Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Issuer
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the Issuer
in respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof. In
case the Issuer shall fail to maintain any agency required by this Section to be
located in the Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.03 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office
of the Trustee, will appoint, in the manner provided in Section 6.09, a Trustee,
so that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.04 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such series)
<PAGE> 37
29
in trust for the benefit of the Holders of the Securities of such
series, or Coupons appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to
the Trustee upon Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, no later than 12:00 noon on or prior to each
due date of the principal of or interest on the Securities of such series,
deposit with the paying agent a sum in immediately available funds sufficient to
pay such principal or interest so becoming due, and (unless such paying agent is
the Trustee) the Issuer will promptly notify the Trustee of any failure to take
such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 10.01, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all series
of Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.03 and 10.04.
SECTION 3.05 Notice of Defaults. In the event that the Issuer
or any Guarantor becomes aware of any Default or Event of Default the Issuer or
such Guarantor, as the case may be, promptly after it becomes aware thereof,
will give written notice thereof to the Trustee.
SECTION 3.06 Compliance Certificates. (a) Each of the Issuer
and the Parent Company shall deliver to the Trustee, within 45 days after the
end of each fiscal
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30
quarter (90 days after the end of the last fiscal quarter of each year), an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal quarter. In the case of such
Officers' Certificates delivered within 90 days of the end of each of the
Issuer's and the Parent Company's fiscal year, such certificates shall contain a
certification from the principal executive officer, principal financial officer
or principal accounting officer of such Company that a review has been conducted
of the activities of the Parent Company and its Subsidiaries and the Parent
Company's and its Subsidiaries' performance under this Indenture and that the
Parent Company and the Issuer has complied with all conditions and covenants
under this Indenture. For purposes of this Section 3.06(a), such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If they do know of such a Default or Event
of Default, the certificate shall describe any such Default or Event of Default
and its status. The first certificate to be delivered pursuant to this Section
3.06(a) shall be for the first fiscal quarter beginning after the execution of
this Indenture.
(b) Within 90 days of the end of each of the Parent Company's
and the Issuer's fiscal years, each of the Parent Company and the Issuer shall
deliver to the Trustee a list of all Significant Subsidiaries. The Trustee shall
have no duty with respect to any such list except to keep it on file and
available for inspection by the Holders.
SECTION 3.07 Issuance of Subsidiary Guarantees by Restricted
Subsidiaries. Each Subsidiary of the Parent Company which becomes a Restricted
Subsidiary after the date of this Indenture and has assets in excess of $2.0
million shall together with the Issuer and each other Guarantor, (i) not later
than 30 days after such Subsidiary becomes a Restricted Subsidiary if such
Subsidiary is a Significant Subsidiary, and (ii) not later than 180 days after
such Subsidiary becomes a Restricted Subsidiary if such Restricted Subsidiary is
not a Significant Subsidiary, execute and deliver a supplemental indenture to
this Indenture providing for a Note Guarantee of payment of the Securities by
such Restricted Subsidiary pursuant to Article Twelve.
SECTION 3.08 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.09(a), 6.10, 8.02, 10.04,
11.02 or 11.05, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officers'
Certificate delivered to such party, make a similar publication in Luxembourg.
ARTICLE FOUR
Securityholders Lists And Reports By The
Issuer And The Trustee
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SECTION 4.01 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing Registered
Securities in each year, and (b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Issuer of any such request as of
a date not more than 15 days prior to the time such information is furnished.
SECTION 4.02 Preservation and Disclosure of Securityholders
Lists. The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of registered Securities and shall otherwise comply with Section
312(a) of the Trust Indenture Act.
SECTION 4.03 Reports by the Issuer. The Parent Company shall:
(1) file with the Trustee, within 15 days after the Parent
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Parent
Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Parent Company is
not required to file information, documents or reports pursuant to
either of such Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Parent Company, the Issuer or any
Subsidiary Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
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(3) transmit to all Holders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Parent
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 4.04 Reports by the Trustee. Within 60 days after May
15 of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit to the Holders
of Securities, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, a brief report dated as of such May 15 if required by
Section 313(a) of the Trust Indenture Act.
ARTICLE FIVE
Remedies Of The Trustee And Securityholders
On Event Of Default
SECTION 5.01 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means any one of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon any redemption, by
declaration or otherwise; or
(b) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(c) failure on the part of the Issuer or any Guarantor duly to
observe or perform any other of the covenants or agreements on the part
of the Issuer or such Guarantor in the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series
a default in the performance or breach of which is elsewhere in this
Section specifically dealt with) or in this Indenture contained for a
period of 60 days after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer or such Guarantor remedy the
same, shall have been given
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by registered or certified mail, return receipt requested, to the
Issuer or such Guarantor by the Trustee, or to the Issuer or such
Guarantor and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected
thereby; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer, any Guarantor or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer, such Guarantor or
such Subsidiary or for any substantial part of the Issuer's, such
Guarantor's or such Subsidiary's property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(e) the Issuer, any Guarantor or any Significant Subsidiary
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer, such Guarantor or such Subsidiary or
for any substantial part of the Issuer's, such Guarantor's or such
Subsidiary's property, or make any general assignment for the benefit
of creditors; or
(f) failure by the Issuer or any Guarantor to make any
payment at maturity, including any applicable grace period, in respect
of Indebtedness in an amount in excess of $5,000,000 or the equivalent
thereof in any other currency or composite currency and such failure
shall not have been waived and shall have continued for a period of 30
days after written notice thereof and shall have been given by
registered or certified mail, return receipt requested, to the Issuer,
such Guarantor or such Subsidiary by the Trustee, or to the Issuer,
such Guarantor or such Subsidiary and the Trustee by the holders of not
less than 25% in aggregate principal amount of the Outstanding
Securities (treated as one class); or
(g) a default with respect to any Indebtedness, which default
results in the acceleration of Indebtedness in an amount in excess of
$5,000,000 in the aggregate or the equivalent thereof in any other
currency or composite currency without such Indebtedness having been
discharged or such acceleration having been cured, waived, rescinded or
annulled for a period of 30 days after written notice thereof shall
have been given by registered or certified mail, return receipt
requested, to the Issuer or any Guarantor by the Trustee, or to the
Issuer or such Guarantor and the Trustee by
<PAGE> 42
34
the holders of not less than 25% in aggregate principal amount of the
Outstanding Securities (treated as one class); or
(h) any other Event of Default provided in the Board
Resolution or Board Resolutions or in the supplemental indenture, as
the case may be, under which such series of Securities is issued or in
the form of Security for such series;
provided that if any such failure, default or acceleration referred to in clause
(f) or (g) above shall cease or be cured, waived, rescinded or annulled, then
the Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
If an Event of Default describe in clause (a), (b), (c) or (h)
(if the Event of Default under clause (c) or (h), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (h) (if the Event of Default under
clause (c) or (h), as the case may be, is with respect to all series of
Securities then Outstanding), (f) or (g) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clause (d) or (e) occurs, the
entire principal (or, if any Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the terms thereof) of all
Securities then Outstanding, and interest accrued thereon, shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, in the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any
<PAGE> 43
35
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series (or of
all the Securities, as the case may be) and the principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as the
case may be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of
each such series, or of all the Securities (as the case may be), in each case
voting as a single class, then Outstanding, by written notice to the Issuer and
to the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.02 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon
maturity of the Securities of such series or upon any redemption or by
declaration or
<PAGE> 44
36
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
In case the Issuer or any Guarantor shall fail forthwith to
pay such amounts upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer, or
any Guarantor or other obligor upon the Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor under the
Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer, any Guarantor or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its property or any
Guarantor or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer, such Guarantor or other obligor upon the
Securities, or to the creditors or property of the Issuer, such Guarantor, or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series)
<PAGE> 45
37
owing and unpaid in respect of the Securities of any series, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer, any Guarantor or
other obligor upon the Securities, or to the creditors or property of
the Issuer, such Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or Coupons appertaining
to such Securities, may be enforced by the Trustee without the possession of any
of the Securities of such series or Coupons appertaining to such Securities or
the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the
<PAGE> 46
38
Holders of the Securities or Coupons appertaining to such Securities in respect
of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.03 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect 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 moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole
<PAGE> 47
39
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of
any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto upon written direction.
SECTION 5.04 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.06 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of each affected series then
Outstanding (treated as a single class) shall have made written request upon the
Trustee to institute such action or proceeding in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 5.09; it being understood and
intended,
<PAGE> 48
40
and being expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder and the Trustee, that no one or more
Holders of Securities of any series or Coupons appertaining to such Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities or Coupons appertaining to such Securities, or
to obtain or seek to obtain priority over or preference to any other such Holder
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.07 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupons, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.08 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as otherwise provided in Section 2.09 with respect
to the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons, and except as provided in Section 5.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time Outstanding
shall have the right to direct the time,
<PAGE> 49
41
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 by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 6.01)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith by its
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all series so affected not joining in
the giving of said direction, it being understood that (subject to Section 6.01)
the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.01, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past Default or Event of Default
described in Section 5.01 and its consequences, except a Default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such waiver,
the Issuer, the Guarantors, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 45 days after a
Responsible Officer of the Trustee obtains actual knowledge of the occurrence
of a Default with respect to the Securities of any series, give notice of all
Defaults with respect to that series known to the Trustee (i) if any
Unregistered
<PAGE> 50
42
Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.09, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, unless in each case such Defaults shall have been cured before the mailing
or publication of such notice; provided that, except in the case of Default in
the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund installment on such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (h) of Section 5.01 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (h) (if
the suit under clause (c) or (h) relates to all the Securities then
Outstanding), (d), (e), (f) or (g) of Section 5.01, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE SIX
Concerning The Trustee
SECTION 6.01 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of any Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have
<PAGE> 51
43
occurred with respect to such series, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has not
been cured or waived) the Trustee shall exercise with respect to such series of
Securities 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.
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof 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;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) 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 pursuant to Section 5.09 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.
<PAGE> 52
44
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and
subject to Section 315 of the Trust Indenture Act.
SECTION 6.02 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act, and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate,
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45
statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then Outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(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 not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 6.03 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Issuer are true and
accurate, subject to the qualifications set forth therein. The Trustee shall not
be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.04 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.05 Moneys Held by Trustee. Subject to the provisions
of Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of the
<PAGE> 54
46
law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be
under any liability for interest on any moneys received by it hereunder.
SECTION 6.06 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) as shall be agreed upon in writing by the Issuer
and the Trustee and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Issuer also covenants to indemnify the Trustee and each
predecessor 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 this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance of
such obligations of the Issuer, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest, if any,
on particular Securities or any Coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or (e), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.07 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.01 and 6.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such certificate, in the
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absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08 Corporate Trustee Required; Eligibility;
Conflicting Interests.
(a) There shall be at all times a Trustee hereunder which
shall be eligible to act as Trustee under Section 310(a)(1) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of Federal, State, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) The following indenture shall be deemed to be specifically
described herein for the purposes of clause (i) of the first proviso contained
in Section 310(b) of the Trust Indenture Act: Indenture dated as of May 17, 1995
between Protection One Alarm Monitoring, Inc., a Delaware corporation, as
Issuer, Protection One, Inc., a Delaware corporation, as Guarantor, and State
Street Bank and Trust Company, as Successor Trustee.
SECTION 6.09 Resignation and Removal; Appointment of Successor
Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer at least 30
days prior to the date of the proposed resignation and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.09, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c) of the Trust Indenture Act
at such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they shall appear on
the registry books. Upon receiving such notice of resignation, the Issuer shall
promptly appoint a successor trustee or trustees with respect to the applicable
series by written instrument in duplicate, executed by authority
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of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 315(e)
of the Trust Indenture Act on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act with respect to
any series of Securities after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.08 of this Indenture and
Section 310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Issuer or by any Securityholder;
or
(iii) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act, any Securityholder who has been a
bona fide Holder of a Security or Securities 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 removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
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(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and with the consent of the
Issuer appoint a successor trustee with respect to the Securities of such series
by delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 7.01 of the action in
that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.09 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 6.10.
SECTION 6.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.09 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and 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
under separate indentures.
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No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.10 unless at the time of
such acceptance such successor trustee shall be qualified under the provisions
of Section 310(b) of the Trust Indenture Act and eligible under the provisions
of Section 6.08.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.10, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.09, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to Section 313(c)
of the Trust Indenture Act, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 6.09. If the Issuer fails to give such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.08, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate of
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authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.12 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.09.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to 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 for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 (determined as provided in Section
6.08 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any 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 any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.12 with respect to
one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and the Issuer shall provide
notice of such appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 13.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time such
compensation as may be agreed upon in writing by the Issuer
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and the Authenticating Agent. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.08 and 7.03 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
Concerning The Securityholders
SECTION 7.01 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Article.
SECTION 7.02 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.01 and 6.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person executing
the same. The fact of the holding by any Holder of an Unregistered
Security of any series and the identifying number of such Security and
the date of his holding the same, may be proved by the production of
such Security or by a certificate executed by any trust company, bank,
banker, or recognized securities dealer wherever situated satisfactory
to the Trustee, if such certificate shall be deemed by the Trustee to
be satisfactory. Each such
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certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to
continue for a period of one year from the date of such certificate
unless at the time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the same
Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person,
or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. Subject to Sections 6.01 and 6.02, the
fact and date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person so executing
such instrument and the amount and numbers of any Security or
Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee
for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.01, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration) not more than 60 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
SECTION 7.03 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the person
in whose name any Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notification of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the
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Trustee and any agent of the Issuer or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Issuer, the Trustee,
nor any agent of the Issuer or the Trustee shall be affected by any notice to
the contrary. All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.
SECTION 7.04 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are 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 Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 6.01 and
6.02, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.05 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the Holder
of any Security shall be conclusive
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and binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all Securities affected by such action.
ARTICLE EIGHT
Supplemental Indentures
SECTION 8.01 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer or any Guarantor, or successive successions, and the assumption
by the successor corporation of the covenants, agreements and
obligations of the Issuer or such Guarantor pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
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(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Securities or Coupons in any material respect;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.01 and 2.03;
(f) to make any change that does not materially and adversely
affect the rights under this Indenture of any Holder of Securities
hereunder;
(g) to add any Note Guarantee or release any Note Guarantee
pursuant to the provisions thereof;
(h) to reflect a Subsidiary Guarantor ceasing to be liable on
its Note Guarantee because it is no longer a Subsidiary of the Issuer;
(i) 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 6.10; and
(j) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's owns rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.02.
SECTION 8.02 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series
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affected by such supplemental indenture (voting as one class), the Issuer, when
authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
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 any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series or of
the Coupons appertaining to such Securities; provided, that no such supplemental
indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make
the principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than that
provided in the Securities and Coupons or in accordance with the terms thereof,
or reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.01 or the amount thereof provable in bankruptcy pursuant
to Section 5.02, or alter the provisions of Section 15.11 or 15.12 or impair or
affect the right of any Securityholder to institute suit for the payment thereof
or, if the Securities provide therefor, any right of repayment at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holder of each Security so
affected.
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 Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
Board Resolution (which Board Resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
Secretary or an Assistant Secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.01, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
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It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c) of the
Trust Indenture Act, by mailing a notice thereof by first-class mail to such
Holders at such addressees as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.09, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.03 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.04 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
SECTION 8.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the
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Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
SECTION 8.06 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Eight shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
SECTION 9.01 Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. Neither the Issuer nor any
Guarantor shall merge or consolidate with any other Person or sell, lease or
convey all or substantially all of its assets to any other Person, unless (i)
either the Issuer or such Guarantor, as the case may be, shall be the continuing
corporation, or the successor corporation or the Person which acquires by sale,
lease or conveyance substantially all the assets of the Issuer or such Guarantor
shall be a corporation organized under the laws of the United States of America
or any State thereof or the District of Columbia and shall expressly assume all
of the obligations of the Issuer or such Guarantor, as the case may be, on all
of the Securities and Coupons, if any, or the Note Guarantee, as the case may
be, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer or such
Guarantor, as the case may be, such person or such successor corporation, shall
not, immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition
under this Indenture. Notwithstanding the foregoing, the Issuer or any other
Restricted Subsidiary may enter into any of the transactions described in the
preceding sentence with a Wholly Owned Restricted Subsidiary that is a Guarantor
and that (in the case of any Wholly Owned Restricted Subsidiary other than the
Issuer) has a positive net worth; provided that, in connection with any merger
or consolidation as described in the preceding sentence, no consideration (other
than Common Stock in the surviving Person, the Issuer or the Guarantor) shall be
issued or distributed to the stockholders of the Issuer or the Guarantor, in
which case the provisions of this Section 9.01 shall be deemed to be complied
with.
SECTION 9.02 Successor Corporation Substituted. In case of any
such consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer or such Guarantor, as the case may
be, with the same effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in its own name or in
the name of the Issuer prior to such succession any or all of the Securities
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issuable hereunder which together with any Coupons appertaining thereto
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously shall
have been signed and delivered by the Officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued together with any Coupons appertaining thereto shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.03 Opinion of Counsel Delivered to Trustee. The
Trustee, subject to the provisions of Sections 6.01 and 6.02, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE TEN
Satisfaction and Discharge Of Indenture;
Unclaimed Moneys
SECTION 10.01 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to
be paid the principal of and interest on all the Securities of any series
Outstanding hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.09) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
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any series theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities of such series and Coupons appertaining
thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.09) or (c) in the case of any
series of Securities where the exact amount (including the currency of payment)
of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (ii) below, (i) all the Securities of
such series and all unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
the entire amount in cash (other than moneys repaid by the Trustee or any paying
agent to the Issuer in accordance with Section 10.04) or, in the case of any
series of Securities the payments on which may only be made in Dollars, direct
obligations of the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series; and if, in
any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and exchange
of Securities of such Series and of Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of
holders of Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, and (vi) the obligations of the Issuer under Section 3.02) and
the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture; provided, that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the Securities and
Coupons held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably
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and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.03. In addition to discharge of the Indenture pursuant to the
immediately preceding paragraph, in the case of any series of Securities the
exact amounts (including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in
clause (a) below, the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to
in subparagraph (a) below, and the provisions of this Indenture with respect to
the Securities of such series and Coupons appertaining thereto shall no longer
be in effect (except as to (i) rights of registration of transfer and exchange
of Securities of such series and of Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them and (vi) the obligations of the Issuer under Section 3.02) and
the Trustee, at the expense of the Issuer, shall at the Issuer's request,
execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such and in such amounts as will insure
the availability of cash or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (A) the principal and interest on all Securities of
such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities of
such series;
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(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement or
instrument to which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Issuer has received
from, or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and such opinion shall confirm that, the Holders of the Securities of
such series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had
not occurred; and
(d) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under
Sections 3.05, 3.06, 4.03 and 9.01 and clause (c) of Section 5.01 with respect
to Sections 3.05, 3.06, 4.03 and 9.01, and clauses (f) and (g) of Section 5.01
shall be deemed not to be Events of Default, in each case with respect to the
Securities of any series, and any Coupons appertaining thereto, Outstanding 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 any Series, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in such Section, whether directly or indirectly by reason
of any reference elsewhere herein to such Section or by reasons of any reference
in such Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section 5.01,
but the remainder of this Indenture and such Securities and Coupons shall be
unaffected thereby. The following shall be the conditions to application of this
subsection C of this Section 10.01:
(a) The Issuer has irrevocably deposited or caused to
be deposited with the Trustee 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 the Securities
of such series and coupons appertaining thereto, (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized
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firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and Coupons
appertaining thereto and (B) any mandatory sinking fund payments on the
day on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series.
(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 shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 5.01(d) and (e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(c) Such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 6.08 and
for purposes of the Trust Indenture Act with respect to any securities
of the Issuer.
(d) Such 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 Issuer is a party or
by which it is bound.
(e) Such covenant defeasance shall not cause any
Securities then listed on the registered national securities exchange
under the Exchange Act to be delisted.
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
SECTION 10.02 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.04, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.01 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to
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the Holders of the particular Securities of such series and of Coupons
appertaining thereto for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.03 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon written direction of the Issuer, be repaid to it or paid to the Trustee
and thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 10.04 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but remaining
unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer cause to be published once, in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and if required by Section 3.09, once
in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and
that, after a date specified therein, which shall not be less than thirty days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer.
SECTION 10.05 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.01 or the principal or interest received in respect of
such obligations.
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ARTICLE ELEVEN
Redemption Of Securities And Sinking Funds
SECTION 11.01 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 11.02 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c) of the
Trust Indenture Act, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, to such Holders at such addresses as
were so furnished to the Trustee (and, in the case of any such notice given by
the Issuer, the Trustee shall make such information available to the Issuer for
such purpose). Notice of redemption to all other Holders of Unregistered
Securities shall be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in London (and,
if required by Section 3.09, in an Authorized Newspaper in Luxembourg), in each
case, once in each of three successive calendar weeks, the first publication to
be not less than 30 nor more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designed for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security of such series.
The notice of redemption to each such Holder shall specify,
the principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security or a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal
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amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.04) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 60 days (or such shorter period as
shall be satisfactory to the Trustee) prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select Securities of such series to be redeemed in
whole or in part in compliance with the requirements, as certified to the
Trustee by the Issuer, of the principal national securities exchange, if any, on
which Securities of such series are listed, or if Securities of such series are
not listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem fair and
appropriate. Securities may be redeemed in part in multiplies equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series 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 of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 11.03 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of
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such Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.05 and
10.04, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption, provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.03
and 2.07 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and each Guarantor and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save
each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer and each Guarantor shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Issuer,
a new Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 11.04 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
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directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 11.05 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
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 the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 13.05)
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee which such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver such Officers'
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Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or
ECU) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall select,
in the manner provided in Section 11.02, for redemption on such sinking fund
payment a sufficient principal amount of Securities of such series to absorb
said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of such series
(or portions thereof) so selected. Securities shall be excluded from eligibility
for redemption under this Section if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 11.02 (and with the effect provided
in Section 11.03) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.
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On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of redemption
of Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE TWELVE
Subordination of Securities
SECTION 12.01 Securities and Coupons Subordinated to Senior
Indebtedness. The Issuer covenants and agrees, and each Holder of a Security or
Coupon, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by each series of Securities and any Coupons and the
payment of the principal of and interest on each and all of such series of
Securities and of any Coupons pursuant to the terms of such series of Securities
or any Coupons or upon acceleration, including any amounts received upon the
exercise of rights of rescission or other rights of action (including claims for
damages) or otherwise, to the extent relating to the purchase price of such
series of Securities and of any Coupons or amounts corresponding to such
principal of or interest on such series of Securities and any Coupons shall be
expressly subordinated in right of payment to the prior payment in full of
Senior Indebtedness, to the extent and in the manner provided in the Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.03 establishing such series of Securities and Coupons, if
any.
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ARTICLE THIRTEEN
Guarantee of Securities
SECTION 13.01 Note Guarantee. Subject to the provisions of
this Article Thirteen, each of the Guarantors hereby, jointly and severally,
fully, unconditionally and irrevocably Guarantees to each Holder of Securities
hereunder and to the Trustee on behalf of the Holders: (i) the due and punctual
payment of the principal of and interest on each Security, when and as the same
shall become due and payable, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Securities, to the extent lawful, and the due and
punctual performance of all other obligations of the Issuer to the Holders or
the Trustee, all in accordance with the terms of such Security and this
Indenture and (ii) in the case of any extension of time of payment or renewal of
any Securities or any of such other obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at maturity, by acceleration or otherwise, subject, however, in the
case of clauses (i) and (ii) above, to the limitations set forth in the next
succeeding paragraph.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the Guarantee by such
Guarantor pursuant to its Note Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the United States Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders and
such Guarantor hereby irrevocably agree that the obligations of such Guarantor
under its Note Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guarantor
(including, but not limited to, the Guarantor Senior Indebtedness of such
Guarantor) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Note Guarantee or pursuant to the following paragraph,
result in the obligations of such Guarantor under its Note Guarantee not
constituting such fraudulent transfer or conveyance.
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In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its Note
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuer's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Note Guarantee. "Adjusted Net Assets" of such Guarantor at
any date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Note Guarantee, of such Guarantor at such date
and (y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving effect
to any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Note Guarantee of such Guarantor),
excluding debt in respect of its Note Guarantee, as they become absolute and
matured.
Each of the Guarantors hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Issuer, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other Lien upon
any property subject thereto or exhaust any right or take any action against the
Issuer or any other Person, any right to require a proceeding first against the
Issuer, the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever (except as
specified above), and covenants that this Note Guarantee will not be discharged
as to any such Security except by payment in full of the principal thereof and
interest thereon and as provided in Section 10.01. The maturity of the
obligations Guaranteed hereby may be accelerated as provided in Article Five for
the purposes of this Article Twelve. In the event of any declaration of
acceleration of such obligations as provided in Article Five, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Article Thirteen. In addition, without
limiting the foregoing provisions, upon the effectiveness of an acceleration
under Article Five, the Trustee shall promptly make a demand for payment on the
Securities under the Note Guarantee provided for in this Article Thirteen.
The obligations of each Guarantor under this Note Guarantee
are independent of the obligations Guaranteed by such Guarantor hereunder, and a
separate action or actions may be brought and prosecuted by the Trustee on
behalf of, or by, the Holders, subject to the terms and conditions set forth in
this Indenture, against a Guarantor to enforce this
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Guaranty, irrespective of whether any action is brought against the Issuer or
whether the Issuer is joined in any such action or actions.
If the Trustee or the Holder is required by any court or
otherwise to return to the Issuer or any Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to Issuer or such Guarantor, any amount paid to the Trustee or such Holder in
respect of a Security, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each of the Guarantors
further agrees, to the fullest extent that it may lawfully do so, that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
the maturity of the obligations Guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition extant under any applicable bankruptcy
law preventing such acceleration in respect of the obligations Guaranteed
hereby.
Each of the Guarantors hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Issuer or any
other Guarantor that arise from the existence, payment, performance or
enforcement of its obligations under this Note Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of the Holders against the Issuer or any Guarantor or any
collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Issuer or a Guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be paid
to a Guarantor in violation of the preceding sentence and the principal of and
accrued interest on the Securities shall not have been paid in full, such amount
shall be deemed to have been paid to such Guarantor for the benefit of, and held
in trust for the benefit of, the Holders, and shall forthwith be paid to the
Trustee for the benefit of the Holders to be credited and applied upon the
principal of and accrued interest on the Securities. Each of the Guarantors
acknowledges that it will receive direct and indirect benefits from the issuance
of the Securities pursuant to this Indenture and that the waivers set forth in
this Section 13.01 are knowingly made in contemplation of such benefits.
The Note Guarantee set forth in this Section 13.01 shall not
be valid or become obligatory for any purpose with respect to a Security until
the certificate of authentication on such Security shall have been signed by or
on behalf of the Trustee.
SECTION 13.02 Obligations Unconditional. Nothing contained in
this Article Thirteen or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among any Guarantor and the holders of the
Securities, the obligation of such Guarantor,
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which is absolute and unconditional, upon failure by the Issuer to pay to the
holders of the Securities the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
such Guarantor, nor shall anything herein or therein prevent any Holder or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this
Article Thirteen will restrict the right of the Trustee or the Holders to take
any action to declare the Note Guarantee to be due and payable prior to the
maturity of any Securities or series of Securities pursuant to Section 5.01 or
to pursue any rights or remedies hereunder.
SECTION 13.03 Release of Note Guarantees. Upon the sale by the
Issuer or any Subsidiary of all or substantially all of the assets of any
Subsidiary Guarantor or all of the Capital Stock of any Subsidiary Guarantor in
a transaction constituting an Asset Sale that does not otherwise violate this
Indenture, such Guarantor (in the event of a sale or other disposition of all of
the Capital Stock of such Subsidiary Guarantor) or the corporation acquiring
such assets (in the event of a sale or other disposition of all or substantially
all of the assets of such Subsidiary Guarantor) shall be automatically and
unconditionally released and discharged of its Note Guarantee obligations.
SECTION 13.04 Notice to Trustee. A Guarantor shall give prompt
written notice to the Trustee of any fact known to such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the Note
Guarantee pursuant to the provisions of this Article Thirteen.
SECTION 13.05 Supplemental Indenture. Subject to the
requirements of Article Eight, any supplemental indenture required to add a Note
Guarantee pursuant to Section 3.08 shall be executed by the Issuer, each
Guarantor, the Trustee and the Subsidiary providing such guaranty.
SECTION 13.06 This Article not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest on the
Securities by reason of any provision of this Article Thirteen will not be
construed as preventing the occurrence of an Event of Default.
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ARTICLE FOURTEEN
Subordination of Note Guarantees
SECTION 14.01 Securities and Coupons Subordinated to Guarantor
Senior Indebtedness. The Issuer covenants and agrees, and each Holder of a
Security or Coupon, by his acceptance thereof, likewise covenants and agrees,
that the indebtedness represented by each Note Guarantee of a Guarantor with
respect to a series of Securities will be subordinated to the Guarantor Senior
Indebtedness of such Guarantor on the same basis as such series of Securities
shall be subordinated to Senior Indebtedness of the Issuer and to the extent and
in the manner provided in the Board Resolution, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 2.03 establishing the
series of Securities and Coupons, if any, to which such Note Guarantee relates.
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ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer, or director, as such, of the Issuer or of any successor, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the Coupons
appertaining thereto.
SECTION 15.02 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim
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under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities or Coupons, if any.
SECTION 15.03 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not. All the covenants, stipulations, promises
and agreements in this Indenture contained by or in behalf of the Trustee shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.04 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons to or on the Issuer or to or on any
Guarantor may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Issuer is filed by the Issuer with the Trustee) to Protection One
Alarm Monitoring, Inc., 3900 S.W. Murray Blvd., Beaverton, Oregon 97005,
Attention: Chief Financial Officer. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to State Street Bank and Trust Company, Two International Place, 4th
Floor, Boston, Massachusetts 02110, Attention: Corporate Trust Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at such Holder's last address as it
appears in the Security register. In any case where notice to such Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory of the Trustee shall be deemed to be a sufficient giving of such
notice.
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SECTION 15.05 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such Officer knows that the
certificates or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an Officer or Officers of the Issuer or your
certificates of public officials.
Any certificate, statement or opinion of an Officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
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SECTION 15.06 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
SECTION 15.07 Conflict of Any Provision of Indenture with
Trust Indenture Act. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed
duties or incorporated provision shall control.
SECTION 15.08 Governing Law. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the internal
laws of such State, except as may otherwise be required by mandatory provisions
of law.
SECTION 15.09 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.10 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.
SECTION 15.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.03 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars (including
ECUs), then the principal amount of Securities of such series which shall be
deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange
Rate. For purposes of this Section 15.11, Market Exchange Rate shall mean the
noon Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication,
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the "Journal"). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture including without limitation any determination contemplated in
Section 5.01(f) or (g).
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
SECTION 15.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustees could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on
<PAGE> 90
82
which banking institutions in The City of New York are authorized or required by
law or executive order to close.
[Signature page follows]
<PAGE> 91
S-1
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 date first written above.
PROTECTION ONE ALARM MONITORING, INC.,
as Issuer
By /s/ JOHN W. HESSE
------------------------------------------
Name: John W. Hesse
Title: Executive Vice President
PROTECTION ONE, INC.,
as Guarantor
By /s/ JOHN W. HESSE
------------------------------------------
Name: John W. Hesse
Title: Executive Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By /s/ DANIEL GOLDEN
------------------------------------------
Name: Daniel Golden
Title: Assistant Vice President
<PAGE> 1
LAW OFFICES
MITCHELL, SILBERBERG & KNUPP LLP
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
TRIDENT CENTER
11377 WEST OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90064-1653
FILE NO: 84345-117
DOC. NO: LAL_1001.PRO
TELEPHONE: (310) 312-2000
FAX: (310) 312-3100
August 28, 1996
Protection One, Inc.
Protection One Alarm Monitoring, Inc.
6011 Bristol Parkway
Culver City, California 90230
Re: Registration Statement on Form S-3 (File No. 333-09401)
------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Protection One, Inc., a Delaware corporation
("POI"), and its subsidiary Protection One Alarm Monitoring, Inc., a Delaware
corporation ("Monitoring" and together with POI, the "Companies"), in connection
with the preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of a Registration Statement on Form S-3 (the "Registration Statement"),
relating to the registration of the offering of an aggregate of $150,000,000 of
unsecured senior or subordinated debt securities of Monitoring (the "Debt
Securities"), the guarantee (the "Guarantee") of the Debt Securities issued by
POI and such indeterminate number of shares of Common Stock, par value $.01 per
share (the "Common Stock"), of POI as may be issuable in exchange for or upon
conversion of Debt Securities, if any, that provide for such conversion or
exchange.
This opinion letter is being delivered in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Capitalized terms but not otherwise defined herein have the meanings ascribed
to those terms in the Registration Statement.
In connection with this opinion letter, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the
certificates of incorporation and bylaws of the Companies and the Indentures,
each in the form filed as an exhibit to the Registration Statement. We also
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such other agreements, certificates and other documents as we
have deemed necessary or appropriate as the basis for the opinions set forth
herein. As to all facts material to the opinions expressed herein that were not
independently established or verified by us, we have relied upon oral or
written statements and representations of officers and other representatives of
the Companies and others.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
<PAGE> 2
Protection One, Inc.
Protection One Alarm Monitoring, Inc.
August 28, 1996
Page 2
documents executed by parties other than the Companies, we have assumed that
such parties have the power, corporate or other, to enter into and perform all
obligations thereunder; that such documents have been duly authorized by all
requisite action, corporate and otherwise, and duly executed and delivered, by
the parties thereto and that, except as set forth in paragraphs 1 and 2 below,
such documents constitute valid and binding obligations of such parties. In
addition, we have assumed that each Indenture and the Debt Securities and
Guarantee issued pursuant thereto will, when executed, be in substantially the
forms reviewed by us, that the terms of the Debt Securities and Guarantee when
established will have been duly established in accordance with the applicable
Indenture and so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon any Company and so
as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over either Company and that the corporate
proceedings contemplated by us, as your counsel, to be taken prior to issuance
of the Debt Securities and the Guarantee will have been completed.
The opinions expressed herein are limited to the General Corporation
Law of the State of Delaware and the federal law of the United States. We have
further assumed that no other law would affect any of the conclusions set
forth herein.
Based upon and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that:
1. The Debt Securities will be, when the applicable
Indenture has been duly authorized, executed and delivered, when the
terms of the Debt Securities have been established in conformity with
such Indenture, and when such Debt Securities have been duly executed,
delivered, authenticated, issued, delivered and paid for in accordance
with the Indenture and as contemplated in the Registration Statement (as
finally amended, including any and all necessary post-effective
amendments, and including the prospectus supplement with respect to such
series of Debt Securities), legally issued and binding obligations of
Monitoring, enforceable against Monitoring in accordance with such Debt
Securities' respective terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity,
regardless of whether enforceability is considered in a proceeding at
law or in equity.
2. The Guarantee will be, when the applicable Indenture has
been duly authorized, executed and delivered, when the terms of the
Guarantee have been established in conformity with such Indenture, and
when such Guarantee has been duly executed and delivered for in
accordance with the Indenture and as contemplated in the Registration
Statement (as finally amended, including any and all necessary
post-effective amendments, and including the applicable prospectus
supplement), a legally issued and binding obligation of POI, enforceable
against POI in accordance with the Guarantee's terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii)
general principles of equity
<PAGE> 3
Protection One, Inc.
Protection One Alarm Monitoring, Inc.
August 28, 1996
Page 3
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
3. If any of the Debt Securities are exchangeable for or
convertible into Common Stock, when such Common Stock has been duly
issued and exchanged for or upon conversion of such Debt Securities in
accordance with the terms of the applicable Indenture and any
supplemental indenture thereto fixing the terms for such exchange or
conversion, such Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to this firm under
the caption "Legal Matters" therein. In giving this consent, we do not hereby
admit that we are within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
The opinions expressed herein are expressed as of the date
hereof unless otherwise expressly stated and we disclaim any undertaking to
advise you of any subsequent change in the facts stated or assumed herein or in
applicable law.
Very truly yours,
/s/ Mitchell, Silberberg & Knupp LLP
------------------------------------
MITCHELL, SILBERBERG & KNUPP LLP
LAL/AA
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ___
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq., Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
--------------------
PROTECTION ONE ALARM MONITORING, INC.
(Exact name of obligor as specified in its charter)
Delaware 93-1064579
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6011 Bristol Parkway, Culver City, California 90230
(Address of principal executive offices) (Zip Code)
--------------------
SUBORDINATED DEBT
(Title of Indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its parent,
State Street Boston Corporation.
(See note on page 6.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility
and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) of (2), above.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE> 3
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter of the obligor, the trustee has relied upon the information
furnished to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary,
to reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Boston
and The Commonwealth of Massachusetts, on the 26th day of August, 1996.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Arthur J. MacDonald
-----------------------
Arthur J. MacDonald
Assistant Vice President
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by Protection
One Alarm Monitoring, Inc., of its Subordinated Debt, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Arthur J. MacDonald
-----------------------
Arthur J. MacDonald
Assistant Vice President
Dated: August 26, 1996
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business December
31, 1995, published in accordance with a call made by the Federal Reserve Bank
of this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........ 1,331,827
Interest-bearing balances ................................. 5,971,326
Securities .................................................. 6,325,054
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ....................... 5,436,994
Loans and lease financing receivables:
Loans and leases, net of unearned income .... 4,308,339
Allowance for loan and lease losses ......... 63,481
Loans and leases, net of unearned income and allowances ... 4,244,848
Assets held in trading accounts ............................. 1,042,848
Premises and fixed assets ................................... 374,382
Other real estate owned ..................................... 3,223
Investments in unconsolidated subsidiaries .................. 31,624
Customers' liability to this bank on
acceptances outstanding ................................... 57,472
Intangible assets ........................................... 68,384
Other assets ................................................ 670,058
----------
Total assets ................................................ 25,558,018
==========
LIABILITIES
Deposits:
In domestic offices ....................................... 6,880,231
Noninterest-bearing ....................... 4,728,115
Interest-bearing .......................... 2,152,116
In foreign offices and Edge subsidiary .................... 9,607,427
Noninterest-bearing ....................... 28,266
Interest-bearing .......................... 8,579,162
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ....................... 5,913,969
Demand notes issued to the U.S. Treasury and
Trading Liabilities ....................................... 530,406
Other borrowed money ........................................ 493,191
Bank's liability on acceptances executed and outstanding .... 57,387
Other liabilities ........................................... 820,287
----------
Total liabilities ........................................... 24,102,898
EQUITY CAPITAL
Common stock ................................................ 29,176
Surplus ..................................................... 228,448
Undivided profits ........................................... 1,197,486
----------
Total equity capital ........................................ 1,455,120
----------
Total liabilities and equity capital ........................ 25,558,018
==========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
