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Sample Business ContractsHome: Sample Business Contracts:
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INTERNET CAPITAL GROUP, INC.
and
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
INDENTURE
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Dated as of December 21, 1999
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5 1/2% Convertible Subordinated Notes due 2004
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TABLE OF CONTENTS
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ARTICLE I Definitions and Other Provisions of General Application................................................ 1
Section 1.01. Definitions..................................................................................... 1
Section 1.02. Compliance Certificates and Opinions............................................................ 9
Section 1.03. Form of Documents Delivered to Trustee.......................................................... 9
Section 1.04. Acts of Holders................................................................................ 10
Section 1.05. Notices, Etc., ................................................................................ 12
Section 1.06. Notice to Holders; Waiver...................................................................... 12
Section 1.07. Effect of Headings and Table of Contents....................................................... 12
Section 1.08. Successors and Assigns......................................................................... 13
Section 1.09. Separability Clause............................................................................ 13
Section 1.10. Benefits of Indenture.......................................................................... 13
Section 1.11. Governing Law.................................................................................. 13
Section 1.12. Legal Holidays................................................................................. 13
Section 1.13. Personal Immunity from Liability for Incorporators, Stockholders, Etc.......................... 13
Section 1.14. Conflict with Trust Indenture Act.............................................................. 13
ARTICLE II Securities Forms...................................................................................... 14
Section 2.01. Forms of Securities............................................................................ 14
Section 2.02. Form of Trustee's Certificate of Authentication................................................ 14
Section 2.03. Securities Issuable in Global Form............................................................. 14
ARTICLE III The Securities........................................................................................ 15
Section 3.01. Title and Term................................................................................. 15
Section 3.02. Denominations.................................................................................. 15
Section 3.03. Execution, Authentication, Delivery and Dating................................................. 15
Section 3.04. Registration, Registration of Transfer and Exchange............................................ 16
Section 3.05. Mutilated, Destroyed, Lost and Stolen Securities............................................... 18
Section 3.06. Payment of Interest; Interest Rights Preserved................................................. 19
Section 3.07. Persons Deemed Owners.......................................................................... 20
Section 3.08. Cancellation................................................................................... 20
Section 3.09. Computation of Interest........................................................................ 21
ARTICLE IV Satisfaction and Discharge............................................................................ 21
Section 4.01. Satisfaction and Discharge of Indenture........................................................ 21
Section 4.02. Application of Trust Funds..................................................................... 22
ARTICLE V Remedies.............................................................................................. 23
Section 5.01. Events of Default.............................................................................. 23
Section 5.02. Acceleration of Maturity; Rescission and Annulment............................................. 24
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee................................ 25
Section 5.04. Trustee May File Proofs of Claim............................................................... 26
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.................................... 27
Section 5.06. Application of Money Collected................................................................. 27
Section 5.07. Limitation on Suits............................................................................ 28
Section 5.08. Unconditional Right of Holders to Receive Principal, Premium, If Any, and Interest............. 28
Section 5.09. Restoration of Rights and Remedies............................................................. 28
Section 5.10. Rights and Remedies Cumulative................................................................. 29
Section 5.11. Delay or Omission Not Waiver................................................................... 29
Section 5.12. Control by Holders of Securities............................................................... 29
Section 5.13. Waiver of Past Defaults........................................................................ 29
Section 5.14. Waiver of Usury, Stay or Extension Laws........................................................ 30
Section 5.15. Undertaking for Costs.......................................................................... 30
ARTICLE VI The Trustee........................................................................................... 31
Section 6.01. General........................................................................................ 31
Section 6.02. Certain Rights of Trustee...................................................................... 31
Section 6.03. Individual Rights of Trustee................................................................... 33
Section 6.04. Trustee's Disclaimer........................................................................... 33
Section 6.05. Notice of Default.............................................................................. 33
Section 6.06. Conflicting Interests of Trustee............................................................... 33
Section 6.07. Compensation and Indemnity..................................................................... 33
Section 6.08. Replacement of Trustee......................................................................... 34
Section 6.09. Successor Trustee by Merger, Etc............................................................... 35
Section 6.10. Eligibility.................................................................................... 35
Section 6.11. Money Held in Trust............................................................................ 35
Section 6.12. Withholding Taxes.............................................................................. 35
Section 6.13. Preferential Collection of Claims.............................................................. 36
Section 6.14. Trustee's Application for Instructions from the Company ....................................... 36
ARTICLE VII Holders' Lists and Reports by Trustee and Company..................................................... 36
Section 7.01. Disclosure of Names and Addresses of Holders................................................... 36
Section 7.02. Reports by Trustee............................................................................. 36
Section 7.03. Reports by Company............................................................................. 37
Section 7.04. Company to Furnish Trustee Names and Addresses of Holders...................................... 37
ARTICLE VIII Consolidation, Merger, Sale, Lease or Conveyance...................................................... 38
Section 8.01. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions............................................ 38
Section 8.02. Rights and Duties of Successor Corporation..................................................... 38
Section 8.03. Officers' Certificate and Opinion of Counsel................................................... 39
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ARTICLE IX Supplemental Indentures............................................................................... 39
Section 9.01. Supplemental Indentures Without Consent of Holders ............................................ 39
Section 9.02. Supplemental Indentures with Consent of Holders................................................ 40
Section 9.03. Execution of Supplemental Indentures........................................................... 41
Section 9.04. Effect of Supplemental Indentures.............................................................. 41
Section 9.05. Conformity with Trust Indenture Act............................................................ 41
Section 9.06. Reference in Securities to Supplemental Indentures ............................................ 41
ARTICLE X Covenants............................................................................................. 41
Section 10.01. Payment of Principal, Premium, If Any, and Interest............................................ 41
Section 10.02. Maintenance of Office or Agency................................................................ 42
Section 10.03. Money for Securities Payments to Be Held in Trust.............................................. 42
Section 10.04. Existence...................................................................................... 43
Section 10.05. Payment of Taxes and Other Claims.............................................................. 44
Section 10.06. Statement as to Compliance..................................................................... 44
Section 10.07. Waiver of Certain Covenants.................................................................... 44
ARTICLE XI Redemption of Securities.............................................................................. 44
Section 11.01. Provisional and Optional Redemption by the Company ............................................ 44
Section 11.02. Election to Redeem; Notice to Trustee.......................................................... 45
Section 11.03. Selection by Trustee of Securities to Be Redeemed.............................................. 45
Section 11.04. Notice of Redemption........................................................................... 46
Section 11.05. Deposit of Redemption Price.................................................................... 47
Section 11.06. Securities Payable on Redemption Date.......................................................... 48
Section 11.07. Securities Redeemed in Part.................................................................... 48
ARTICLE XII Repurchase at Option of Holders upon Change in Control................................................ 49
Section 12.01. Right to Require Repurchase.................................................................... 49
Section 12.02. Conditions to the Company's Election to Pay the Repurchase Price in Common Stock............... 49
Section 12.03. Notices; Method of Exercising Repurchase Right, Etc............................................ 50
Section 12.04. Certain Definitions............................................................................ 53
Section 12.05. Change in Control.............................................................................. 53
Section 12.06. References to Repurchase Price................................................................. 54
ARTICLE XIII Conversion............................................................................................ 54
Section 13.01. Conversion Privilege and Conversion Price...................................................... 54
Section 13.02. Exercise of Conversion Privilege............................................................... 56
Section 13.03. Fractions of Shares............................................................................ 56
Section 13.04. Adjustment of Conversion Price................................................................. 57
Section 13.05. Notice of Adjustments of Conversion Price...................................................... 65
Section 13.06. Notice of Certain Corporate Action............................................................. 65
Section 13.07. Company's Obligation Regarding Common Stock.................................................... 66
Section 13.08. Taxes on Conversions........................................................................... 66
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Section 13.09. Covenant as to Common Stock.................................................................... 66
Section 13.10. Cancellation of Converted Securities........................................................... 67
Section 13.11. Provisions in Case of Reclassification, Consolidation, Merger or Sale of Assets................ 67
Section 13.12. Company's Obligation........................................................................... 67
ARTICLE XIV Subordination......................................................................................... 67
Section 14.01. Securities Subordinate to Senior Indebtedness.................................................. 67
Section 14.02. Payment over of Proceeds upon Dissolution, Etc................................................. 68
Section 14.03. No Payment When Senior Indebtedness in Default................................................. 69
Section 14.04. Payment Permitted If No Default................................................................ 70
Section 14.05. Subrogation to Rights of Holders of Senior Indebtedness........................................ 70
Section 14.06. Provisions Solely to Define Relative Rights.................................................... 70
Section 14.07. Trustee to Effectuate Subordination............................................................ 71
Section 14.08. No Waiver of Subordination Provisions.......................................................... 71
Section 14.09. Notice to Trustee.............................................................................. 72
Section 14.10. Reliance on Judicial Order or Certificate of Liquidating Agent................................. 72
Section 14.11. Trustee Not Fiduciary for Holders of Senior Indebtedness....................................... 73
Section 14.12. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights........... 73
Section 14.13. Article Applicable to Paying Agents............................................................ 73
Section 14.14. Certain Conversions Deemed Payment............................................................. 73
SIGNATURES
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
EXHIBIT A-2 - FORM OF RESTRICTIVE LEGEND
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INDENTURE, dated as of December 21, 1999, between INTERNET CAPITAL
GROUP, INC., a Delaware corporation (the "Company"), having its principal office
at 435 Devon Park Drive, Building 800, Wayne, Pennsylvania 19087 and CHASE
MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association
organized under the laws of the United States of America, as Trustee hereunder
(the "Trustee"), having an office at One Liberty Place, 52nd Floor, 1650 Market
Street, Suite 5210, Philadelphia, Pennsylvania 19103.
RECITALS OF THE COMPANY
The Company has duly authorized the issue of its 5 1/2% Convertible
Subordinated Notes due 2004 (the "Securities"), and to provide for such
issuance, the Company has duly authorized the execution and delivery of this
Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939 that are deemed to be incorporated into this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all the holders of the Securities, as
follows:
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
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(d) the word "including" means "including without
limitation," and
(e) 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.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 5.01.
"Board of Directors" means the board of directors of the Company, the
executive committee of that board or any committee of that board duly authorized
to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in that Place of Payment or particular
location are authorized or required by law, regulation or executive order to
close.
Eclipsing Price" has the meaning specified in Section 13.03.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after
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execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the common stock of the Company, $0.001 par
value, as it exists on the date of this Indenture and any shares of any class or
classes of capital stock of the Company resulting from any reclassification or
reclassifications thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chief Executive
Officer, Chief Financial Officer, the President, a Vice President or a Managing
Director of the Company and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company
pursuant to Section 10.02 to convert Securities in accordance with Article 13.
"Conversion Rate" has the meaning specified in Section 13.01.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business as it relates to this
Indenture shall be principally administered, which office at the date hereof is
located at Chase Manhattan Trust Company, One Liberty Place, 52nd Floor, 1650
Market Street, Suite 5210, Philadelphia, Pennsylvania 19103, Attention: Capital
Markets Fiduciary Services (Internet Capital Group 5 1/2% Convertible
Subordinated Notes due 2004).
"corporation" means a corporation, association, partnership,
companies (including limited liability companies) joint-stock company or
business trust.
"Custodian" has the meaning specified in Section 5.01.
"Defaulted Interest" has the meaning specified in Section 3.06.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"Event of Default" has the meaning specified in Article 5.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States, applied on a consistent basis.
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"Government Obligations" means securities which are (i) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which is not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means the Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, with respect to any Person, and without
duplication, (a) all indebtedness, obligations and other liabilities (contingent
or otherwise) of such Person for borrowed money (including obligations of such
Person in respect of overdrafts, foreign exchange contracts, currency exchange
or similar agreements, interest rate protection, hedging or similar agreements,
and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or similar
instruments (whether or not the recourse of the lender is to the whole of the
assets of such Person or to only a portion thereof) other than any account
payable or other accrued current liability or obligation, in each case incurred
in the ordinary course of business in connection with the obtaining of materials
or services; (b) all reimbursement obligations and other liabilities (contingent
or otherwise) of such Person with respect to letters of credit, bank guarantees,
bankers acceptances, security purchase facilities or similar credit
transactions; (c) all obligations and liabilities (contingent or otherwise) in
respect of deferred and unpaid balances on any purchase price of any property,
including interests in Partner Companies; (d) all obligations and liabilities
(contingent or otherwise) in respect of leases of such Person required, in
conformity with generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of such Person and all
obligations and other liabilities (contingent or otherwise) under any lease or
related document, including, without limitation, the balance deferred and unpaid
on any purchase price of any property and a purchase agreement in connection
with the lease of real property which provides that such Person is contractually
obligated to purchase or cause a third party to purchase the leased property and
thereby guarantee a minimum residual value of the leased property to the lessor
and the obligations of such Person under such lease or related document to
purchase or to cause a third party to purchase such leased property; (e) all
obligations of such Person (contingent or otherwise) with respect to an interest
rate or other swap, cap or collar agreement or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument or
agreement; (f) all direct or indirect guarantees or similar agreements by such
Person in respect of, and obligations or liabilities (contingent or otherwise)
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of such Person to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (f); (g) any indebtedness or
other obligations described in clauses (a) through (f) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
such Person, regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person; and (h) any and all deferrals,
renewals, extensions, refinancing, replacements, restatements and refundings of,
or amendments, modifications or supplements to, or any indebtedness, or
obligation issued in exchange for, any indebtedness, obligation or liability of
the kind described in clauses (a) through (g).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date," means the Stated Maturity of an installment
of interest on such Security.
"Make-Whole Payment" has the meaning specified in Section 11.01.
"Maturity," means the date on which the principal of the Securities
becomes due and payable as therein or herein provided, whether at the Stated
Maturity, conversion or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
"Material Adverse Effect" has the meaning specified in Section 10.04.
"Officers Certificate" means a certificate signed by the Chairman of
the Board of Directors, a Managing Director, the President or a Vice President
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company and who shall be reasonably satisfactory to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying
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Agent) for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section
3.05 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities converted into Common Stock pursuant to or
in accordance with this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Partner Company" means a Person some or all of whose outstanding
voting securities are owned or are hereafter acquired, directly or indirectly,
by the Company or one of its Subsidiaries.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," means the place or places where the principal of
(and premium, if any), interest on and the Redemption Prices and the Repurchase
Price with respect to the Securities are payable as specified as contemplated by
Section 10.2.
"Predecessor Security" means every previous Security evidencing all
or a portion of the same debt as that evidenced by such Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 3.05 in exchange for or in lieu
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of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture as set forth in such Security.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities means the date specified for that purpose as contemplated by
Section 3.06, whether or not a Business Day.
"Repurchase Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repurchase Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the Board of Directors, the chairman or
vice-chairman of the executive committee of the Board of Directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president,") the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any corporate trust
officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.04.
"Senior Indebtedness" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) and all other amounts
owed in respect of all Indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by the Company (including all deferrals, renewals,
extensions, refinancings, replacements, restatements or refundings of, or
amendments, modifications or supplements to, the foregoing); except for (i) any
such Indebtedness the terms of which expressly provide that such Indebtedness
shall not be senior in right of payment to the Securities, (ii) any such
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Indebtedness that is by its terms subordinated to or pari passu with the
Securities, and (iii) any Indebtedness between or among the Company or any of
its Subsidiaries or its Affiliates, including all other debt securities and
guarantees in respect of those debt securities issued to any trust, or trustees
of any trust, partnership or other entity affiliated with the Company that is,
directly or indirectly, a financing vehicle used by the Company in connection
with the issuance by that financing vehicle of preferred securities or other
securities that rank pari passu with, or junior to, the Securities but excluding
any Indebtedness incurred by the Company in connection with its acquisition of
beneficial interests in a Partner Company.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities means a date fixed by the Trustee pursuant to Section 3.06.
"Stated Maturity," means the date specified in the Securities as the fixed
date on which the principal of, or interest on, such Securities is due and
payable.
"Subsidiary" means a corporation a majority of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
that ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trading Day" has the meaning specified in Section 13.03.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as in
force at the date hereof; provided, however, that in the event the Trust
Indenture Act of 1939 or such rules and regulations are amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 and such rules and regulations as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States person" means an individual who is a citizen or resident of
the United States, a corporation, partnership or other entity created or
organized in or under the laws
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of the United States or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
Section 1.02 Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
refurnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(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 each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or representations may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company stating that
the information as to such factual matters is
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in the possession of the Company, unless such counsel knows that the certificate
or opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
Section 1.04 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities, may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agents duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of the Securities shall be proved by the
Security Register.
(d) (i) If the Company shall solicit from the Holders of any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so; provided that the Company
shall not be entitled to set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in clause 1.04(d)(iii) below.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such
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request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(ii) Subject to clause 1.04(d)(iii) below, in the absence of
any such record date fixed by the Company, regardless as to whether any
solicitation of the Holders is occurring on behalf of the Company or any Holder,
the Trustee may, at its option, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Trustee
shall have no obligation to do so. Any such record date shall be a date not more
than 30 days prior to the first solicitation of Holders generally in connection
therewith and no later than the date of such solicitation.
(iii) The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to join in
the giving or making of (A) any notice of default, (B) any declaration of
acceleration referred to in Section 5.02, (C) any request to institute
proceedings referred to in Section 5.07(b), or (D) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to any applicable
expiration date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action (whereupon the
record date previously set shall automatically and without any action by any
Person be cancelled and of no effect), nor shall anything in this paragraph be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to the Company
in writing and to each Holder of Securities in the manner set forth in Section
1.06.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
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Section 1.05 Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention: Capital
Markets Fiduciary Services; provided that notices to the Trustee shall only be
deemed given when actually received by the Trustee,
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders 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 given as provided herein. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders as shall be made with the approval of
the Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice maybe waived
in writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 1.07 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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Section 1.08 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.09 Separability Clause. In case any provision in this Indenture
or in any Security shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors hereunder
and the Holders any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.11 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the law of the State of New York
without regard to conflicts of laws principles. This Indenture is subject to the
provisions of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
Section 1.12 Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repurchase Date, Stated Maturity or Maturity of any Security or
the last date on which a Holder has the right to convert his Securities shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security), payment of Redemption Price,
Repurchase Price, interest or principal (and premium, if any), or conversion of
the Securities, need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
Repurchase Date or at the Stated Maturity or Maturity or on such last day for
conversion; provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date,
Repurchase Date, Stated Maturity or Maturity or on such last day for conversion,
as the case may be.
Section 1.13 Personal Immunity from Liability for Incorporators,
Stockholders, Etc. No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Security, or for any claim based
thereon, or otherwise in respect of any Security, or based on or in respect of
this Indenture or any indenture supplemental hereto, against any incorporator,
or against any past, present or future stockholder, director or officer, as
such, of the Company or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being expressly waived and released as
a condition of, and as consideration for, the execution of this Indenture and
the issue of Securities.
Section 1.14 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the TIA which is required
under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case
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may be. To the extent a Security conflicts with a provision in the Indenture,
the Indenture governs.
ARTICLE II
Securities Forms
Section 2.01 Forms of Securities. The Securities shall be in substantially
the form of Exhibit A hereto, and shall have notations, legends or endorsements
required by law, stock exchange rate or usage. Except as otherwise provided in a
Company Order, all Securities other than Securities issuable in global form
shall be issued in definitive form and shall include a legend substantially in
the Form of Exhibit A-2 attached hereto.
Section 2.02 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities described in the within-mentioned Indenture.
DATED:
--------------------------------
as Trustee
By:
-----------------------------
Authorized Signatory
Section 2.03 Securities Issuable in Global Form. Except as otherwise
provided in this Section 2.03, the Securities shall be issuable in global form,
and any such Security shall represent such of the Outstanding Securities as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03. Subject to the provisions of Section 3.03, the
Trustee shall deliver and redeliver any Security in global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel.
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The provisions of the last sentence of Section 3.03 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
Notwithstanding the provisions of Section 3.07, payment of principal of and
any premium and interest on any Security in global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 3.07 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security as the Holder of such
global Security in registered form.
At the instruction of the Company, any Security may be issued in definitive
form, subject to Section 2.01 hereof.
ARTICLE III
The Securities
Section 3.01 Title and Term. The Securities shall be and are hereby
authorized to be designated as "5 1/2% Convertible Subordinated Notes due 2004",
limited in aggregate principal amount to $566,250,000. The Securities shall
mature and the principal thereof shall be due and payable, together will all
accrued and unpaid interest thereon, on December 21, 2004. The Securities shall
be convertible into shares of Common Stock, $0.001 par value, of the Company, as
such shares shall be constituted at the time of conversion, in accordance with
Article 13 hereof.
Section 3.02 Denominations. The Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by the Chief Executive Officer, Chief
Financial Officer, the President, a Vice President or a Managing Director of the
Company and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these individuals on the Securities may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.08 together
with a written statement (which need not comply with Section 1.02 and need not
be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
Section 3.04 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for the
Securities (the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of the Securities and of transfers of the Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby appointed "Security Registrar" for the purpose of registering
the Securities and transfers of the Securities on such Security Register as
herein provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 3.04 and except as otherwise
provided in any Security including any legend thereon, upon surrender for
registration of transfer of any Security at any office or agency of the Company
in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, of any authorized denominations and of
a like aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 3.04, at the option of the
Holder, the Securities may be exchanged for other Securities, of any authorized
denomination or
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denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Securities to be exchanged at any
such office or agency. Whenever any such Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, any global Security shall be exchangeable
only as provided in this paragraph. The depositary for the global Securities
shall be DTC, and the global Securities may be transferred, in whole but not in
part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor
to DTC for such global Security selected or approved by the Company or to a
nominee of such successor to DTC. If at any time DTC notifies the Company that
it is unwilling or unable to continue as depositary for the applicable global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 if so required by
applicable law or regulation, the Company shall appoint a successor depositary
with respect to such global Security or Securities. If (x) a successor
depositary for such global Security or Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such unwillingness, inability or ineligibility, (y) an Event of Default has
occurred and is continuing and the beneficial owners representing a majority in
principal amount of the applicable Securities represented by such global
Security or Securities advise DTC to cease acting as depositary for such global
Security or Securities or (z) the Company, in its sole discretion, determines at
any time that all Outstanding Securities (but not less than all) issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
of like rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If a
Security is issued in exchange for any portion of a global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date or (ii) any Special Record Date and the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the
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Company and the Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 10.05, 11.07 or 12.03(f) not involving any
transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
11.03 and ending at the close of business on the day of the mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
Section 3.05 Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee or the Company, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall, at
the relevant Holder's expense, execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company, at the relevant Holder's expense, shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, appertaining to such destroyed, lost or stolen
Security.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.06 Payment of Interest; Interest Rights Preserved. Interest on
any Security that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.02; provided,
however, that each installment of interest on any Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 3.07, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States;
provided, however, that payments to DTC will be made by wire transfer of
immediately available funds to the account of DTC or its nominee. The term
"Regular Record Date" with respect to any Interest Payment Date shall mean the
December 6 or June 6 preceding December 21 or June 21, respectively.
Any interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause 3.06(a) or 3.06(b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment (which shall not be less than 30 days after such notice
is received by the Trustee) and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at
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the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities at his address as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.07 Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 3.04 and 3.06)
interest on, such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 3.08 Cancellation. All Securities surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against
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any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver a certificate of
such destruction to the Company, unless by a Company Order the Company directs
their return to it.
Section 3.09 Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect with respect to any Security
specified in such Company Request (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, upon receipt of a Company Order, and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture when:
(a) either:
(i) all Securities theretofore authenticated and
delivered have been delivered to the Trustee for cancellation; or
(ii) all Securities not theretofore delivered to the
Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
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(C) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust (1) an amount
of money, (2) Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (3) a combination thereof, sufficient in each case to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 6.07, and, if money shall have been deposited with and held by the
Trustee pursuant to Section 4.01(a)(ii), the obligations of the Trustee under
Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02 Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 10.03, all amounts deposited with the Trustee pursuant
to Section 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent), as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and any interest for whose payment such amounts
have been deposited with or received by the Trustee, but such amounts need not
be segregated from other funds except to the extent required by law. All moneys
deposited with the Trustee pursuant to Section 4.01 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
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ARTICLE V
Remedies
Section 5.01 Events of Default. "Event of Default," wherever used herein
with respect to the Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it shall be occasioned
by the provisions of Article 14 or 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 any interest upon any
Security, when such interest becomes due and payable, and continuance of such
default for a period of 30 days (whether or not such payment is prohibited by
the provisions of Article 14); or
(b) default in the payment of (i) the principal of (or
premium, if any, on) any Security when it becomes due and payable at its
Maturity, or (ii) the payment of the Redemption Price (including the Make-Whole
Payment, if any) with respect to any Security when it becomes due and payable
(whether or not such payment is prohibited by the provisions of Article 14); or
(c) default in the payment of the Repurchase Price in
respect of any Security on the Repurchase Date therefor (whether or not such
payment is prohibited by the provisions of Article 14 hereof); or
(d) failure by the Company to deliver shares of Common Stock
(together with cash in lieu of fractional shares) when such Common Stock (or
cash in lieu of fractional shares) is required to be delivered following
conversion of a Security and continuation of such default for a period of 10
days; or
(e) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to any Security (other
than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(f) a default under any bonds, debentures, notes or other
evidences of indebtedness for money borrowed of the Company or under any
mortgages, indentures or instruments under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company, whether such indebtedness now exists or shall hereafter be created,
which indebtedness, individually or in the aggregate, has a principal amount
outstanding in excess of $10,000,000, which default shall have resulted in such
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indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Securities then
Outstanding, a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder (unless such default has been cured or waived); or
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of the property of any of
them, or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
As used in this Section 5.01, the term "Bankruptcy Law" means title
11, U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities at the time Outstanding occurs and
is continuing, then and in
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every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal shall become immediately due and payable. If an Event
of Default specified in Section 5.01(g) or 5.01(h) occurs, the principal of, and
accrued interest on, all the Securities shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on all Outstanding
Securities,
(ii) the principal of (and premium, if any, on) any Outstanding
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for
in such Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates borne by or
provided for in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to Securities, other than the
nonpayment of the principal of (or premium, if any) or interest on Securities
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
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(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity, then the Company will, upon demand of
the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest, with interest upon any overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest, if any,
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities, of principal (and premium, if
any) and interest, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby directed by
each Holder of Securities to make such payments to the Trustee, and in the event
that the Trustee shall request the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding; provided; however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
SECOND: To the holders of Senior Indebtedness to the extent
required by the provisions of Article 14.
THIRD: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest payable, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities for principal (and premium, if any) and,
interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
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Section 5.07 Limitation on Suits. No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium,
If Any, and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right which is absolute and unconditional
to receive payment of the principal of, and premium, if any, including the
Redemption Prices and Make-Whole Payment upon redemption pursuant to Article 11,
and (subject to Sections 3.04 and 3.06) interest on such Security on the
respective due dates expressed in such Security (or, in the case of redemption
or repurchase, on the Redemption Date or Repurchase Date, as the case may be)
and to convert such Security in accordance with the provisions of this Indenture
and to institute suit for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
Holder.
Section 5.09 Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.05, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 5.12 Control by Holders of Securities. The Holders of not less than
a majority in principal amount of the Outstanding Securities 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, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities
not joining therein.
Section 5.13 Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder with respect to
such Securities and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any)
or interest on any Security,
(b) in respect of the conversion by the Company of any
Security into Common Stock,
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(c) in the payment of the Redemption Prices or Make-Whole
Payment pursuant to Article 11,
(d) in the payment of the Repurchase Price pursuant to
Article 12, or
(e) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 5.14 Waiver of Usury, Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.15 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repurchase, on or after the
Redemption Date or the Repurchase Date, respectively), or the right to convert
any Security in accordance with Article 13.
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ARTICLE VI
The Trustee
Section 6.01 General. The duties and responsibilities of the Trustee shall
-------
be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if the Trustee in its sole discretion shall believe that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Article 6.
Section 6.02 Certain Rights of Trustee. Subject to TIA Sections 315(a)
through (d):
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
facsimile transmission, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, made or presented
by the proper person and may accept and rely upon the same as conclusive
evidence of the truth and accuracy of the statement and opinions contained
therein. The Trustee need not investigate any fact or matter stated in any such
document;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall conform
to Section 1.02. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(c) the Trustee may consult with counsel and the written
advice of such counsel shall be full and complete authorization and protection
with respect to any action taken, suffered or omitted by it hereunder in good
faith and reliance thereon and may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the holders, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(e) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with
the written direction of the holders of a majority in
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principal amount of the Outstanding Securities 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;
(f) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company personally or by agent or
attorney;
(h) the Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder unless the Trustee be
specifically notified of such default in writing by the Company or any holder of
the Securities, and in the absence of such notice the Trustee may conclusively
assume that there is no default; provided that if the Trustee is acting as
Paying Agent, the Trustee shall be required to take and be deemed to have notice
of its failure to receive payments of interest or principal hereunder;
(i) except for information provided by the Trustee concerning
the Trustee, the Trustee shall have no responsibility with respect to any
information in any offering memorandum or other disclosure material distributed
with respect to the Securities, and the Trustee shall have no responsibility for
compliance with securities laws in connection with the issuance and sale of the
Securities;
(j) in the event the Trustee shall receive inconsistent or
conflicting requests and indemnity from two or more groups of holders of the
Securities, each representing at least 25% (but less than 50%) of the aggregate
principal amount of the Securities then outstanding, the Trustee will act in
accordance with instructions received by the holders of the greater percentage
thereof;
(k) except as otherwise expressly provided by the provisions
of this Indenture, the Trustee shall not be obligated and may not be required to
give or furnish any notice, demand, report, request, reply, statement, advice or
opinion to the holder of any Security or to the Company or any other Person, and
the Trustee shall not incur any liability for its failure or refusal to give or
furnish the same unless obligated or required to do so by the express provisions
hereof; and
(l) the Trustee shall not be required to give any bond or
surety with respect to the performance of its duties or the exercise of its
powers under this Indenture.
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Section 6.03 Individual Rights of Trustee. The Trustee, any Paying Agent,
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or its Affiliates with the same rights
it would have if it were not the Trustee, Paying Agent, Security Registrar or
such other agent. Any registrar, co-registrar, paying agent, conversion agent or
authenticating agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.
Section 6.04 Trustee's Disclaimer. The Trustee (i) makes no representation
as to the validity or adequacy of this Indenture or the Securities, (ii) shall
not be accountable for the Company's use or application of the proceeds from the
Securities and (iii) shall not be responsible for any statement in the
Securities other than its certificate of authentication.
Section 6.05 Notice of Default. If any Event of Default occurs and is
continuing and if the Trustee has actual knowledge of such Event of Default, the
Trustee shall mail to each holder in the manner and to the extent provided in
TIA Section 313(c) notice of the Event of Default within 90 days after it
occurs, unless such Event of Default has been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities; and provided further that in the
case of any default or breach referred to in Section 5.01(e) with respect to the
Securities, no such notice to Holders shall be given until at least 90 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities.
Section 6.06 Conflicting Interests of Trustee. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of the TIA and this Indenture.
Section 6.07 Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services.
The compensation of the Trustee shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses and advances incurred or made
by the Trustee in accordance with this Indenture. Such expenses shall include
the reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee and its
directors, agents and employees (collectively the "Indemnitees") against any and
all losses, liabilities, obligations, damages, penalties, fines, judgments,
actions, suits, proceedings, reasonable costs and expenses (including reasonable
fees and disbursements of counsel) of any kind whatsoever which may be incurred
by or imposed on the Indemnitees or any of them arising out of or in connection
with the acceptance or administration of its duties under this Indenture;
provided, however, that the Company need not reimburse any expense or indemnify
against any loss,
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obligation, damage, penalty, fine, judgment, action, suit, proceeding,
reasonable cost or expense (including reasonable fees and disbursements of
counsel) of any kind whatsoever |
