EXHIBIT 99.1
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CANANDAIGUA BRANDS, INC., as Issuer,
and its subsidiary guarantors
Batavia Wine Cellars, Inc.
▇▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ Brands, Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇, Ltd.
▇▇▇▇▇▇ Brands of California, Inc.
▇▇▇▇▇▇ Brands of Georgia, Inc.
▇▇▇▇▇▇ Distillers Import Corp.
▇▇▇▇▇▇ Financial Corporation
▇▇▇▇▇▇▇ Point Beverage Co.
Monarch Import Company
Canandaigua Wine Company, Inc.
The Viking Distillery, Inc.
Canandaigua Europe Limited
Polyphenolics, Inc.
Canandaigua Limited
▇▇▇▇▇▇▇ Trading Corp., as Guarantors
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Trustee
___________________
INDENTURE
Dated as of February 25, 1999
___________________
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CANANDAIGUA BRANDS, INC.
Reconciliation and Tie between Indenture
and
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
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310 (a)(1).............................. 11.5
(a)(2).............................. 11.5
(a)(3).............................. Not applicable
(a)(4).............................. Not applicable
(b)................................. 11.4, 11.5
311 (a)................................. 11.9(a), (c)
(b)................................. 11.9(b), (c)
312 (a)................................. 4.6(d), 11.1
(b)................................. 11.11
(c)................................. 11.11
313 (a)................................. 11.10(a)
(b)(i).............................. Not applicable
(b)(2).............................. 11.10(b)
(c)................................. 11.10(c)
(d)................................. 11.10(c)
314 (a)(1).............................. 4.6(a)
(a)(2).............................. 4.6(b)
(a)(3).............................. 4.6(c)
(b)................................. Not applicable
(c)................................. 3.8
(d)................................. Not applicable
(e)................................. 3.8
315 (a)................................. 11.1(a), (b)
(b)................................. 11.3
(c)................................. 11.1(a)
(d)................................. 11.1(a), 11.1(b), 13.3
(e)................................. 7.7
316 (a)(1)(A)........................... 7.6, 13.3
(a)(1)(B)........................... 7.1, 7.5, 13.3
(a)(2).............................. Not required
(b)................................. 7.7
317 (a)................................. 7.2
(b)................................. 4.8
318 (a)................................. 3.4
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
CANANDAIGUA BRANDS, INC.
INDENTURE
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Trust Indenture Act definitions controlling............ 7
ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBT SECURITIES
SECTION 2.1. Forms generally and dating............................. 8
SECTION 2.2. Amount unlimited; Issuable in series................... 8
SECTION 2.3. Denominations.......................................... 12
SECTION 2.4. Execution of Debt Securities; Authentication........... 12
SECTION 2.5. Issue of Debt Securities............................... 15
SECTION 2.6. Transfer of Debt Securities............................ 16
SECTION 2.7. Persons deemed owners of Debt Securities............... 16
SECTION 2.8. Provisions for Debt Securities in temporary form....... 16
SECTION 2.9. Mutilated, destroyed, lost or stolen Debt Securities... 17
SECTION 2.10. Exchanges of Debt Securities........................... 17
SECTION 2.11. Cancellation of surrendered Debt Securities............ 18
SECTION 2.12. Payment of interest; Defaulted interest................ 18
SECTION 2.13. Global Securities; Depositary.......................... 19
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and
holders of Debt Securities............................. 21
SECTION 3.2. Certificate of independent accountants conclusive...... 21
SECTION 3.3. Treatment of Debt Securities owned or held by
the Company in determining required percentages........ 21
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SECTION 3.4. Remaining provisions not affected by invalidity of
any other provisions - required provisions of Trust
Indenture Act of 1939 to control....................... 21
SECTION 3.5. Company released from Indenture requirements if
entitled to have Indenture cancelled................... 22
SECTION 3.6. Date of execution...................................... 22
SECTION 3.7. Execution of documents furnished under the Indenture... 22
SECTION 3.8. Officers' Certificate and Opinions of Counsel to
be furnished to Trustee................................ 22
SECTION 3.9. Presentation of notices and demands.................... 23
SECTION 3.10. Successors and assigns bound by Indenture.............. 24
SECTION 3.11. Descriptive headings for convenience only.............. 24
SECTION 3.12. New York law to govern................................. 24
SECTION 3.13. Indenture may be executed in counterparts.............. 24
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal and interest...................... 24
SECTION 4.2. Maintenance of office or agency........................ 25
SECTION 4.3. Corporate existence.................................... 25
SECTION 4.4. Restrictions on mergers, sales and consolidations...... 25
SECTION 4.5. Further assurances..................................... 25
SECTION 4.6. File certain reports and information with the
Trustee and the Securities and Exchange Commission -
transmit to holders of Debt Securities summaries
of certain documents filed with the Trustee -
furnish list of holders of Debt Securities
to the Trustee......................................... 26
SECTION 4.7. File statement by officers annually with the Trustee... 27
SECTION 4.8. Duties of Paying Agent................................. 27
ARTICLE V
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 5.1. Applicability of Article............................... 28
SECTION 5.2. Notice of redemption to be given to Trustee -
deposit of cash (or other form of payment) with
Trustee - selection by Trustee of Debt Securities
to be redeemed......................................... 28
SECTION 5.3. Debt Securities called for redemption to become
due - rights of holders of redeemed Debt Securities -
return of funds on conversion.......................... 30
SECTION 5.4. Credits against sinking fund........................... 30
SECTION 5.5. Redemption through sinking fund........................ 31
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SECTION 5.6. Debt Securities no longer Outstanding after notice
to Trustee and deposit of cash......................... 32
SECTION 5.7. Conversion arrangement on call for redemption.......... 32
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect
to Debt Securities of any series....................... 33
SECTION 6.2. Deposits for payment or redemption of Debt Securities
to be held in trust.................................... 34
SECTION 6.3. Repayment of moneys.................................... 35
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined -- acceleration of
maturity upon default -- waiver of default after
acceleration........................................... 35
SECTION 7.2. Covenant of Company to pay to Trustee whole amount
due on default in payment of Principal or interest -
Trustee may recover judgment for whole amount due -
application of moneys received by the Trustee.......... 38
SECTION 7.3. Trustee may enforce rights of action without
possession of Debt Securities.......................... 40
SECTION 7.4. Delays or omissions not to impair any rights or
powers accruing upon default........................... 40
SECTION 7.5. In Event of Default Trustee may protect and enforce
its rights by appropriate proceedings - holders of
majority in aggregate Principal amount of Debt
Securities of a series may waive default............... 41
SECTION 7.6. Holders of majority in aggregate principal amount
of Debt Securities of any series may direct exercise
of remedies............................................ 41
SECTION 7.7. Limitation on suits by holders of Debt Securities...... 42
SECTION 7.8. No Debt Securities owned or held by, for the
account of or for the benefit of the Company to be
deemed Outstanding for purpose of payment or
distribution........................................... 43
SECTION 7.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings........... 43
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ARTICLE VIII
EVIDENCE OF ACTION BY HOLDERS OF DEBT SECURITIES
SECTION 8.1. Evidence of action by holders of Debt Securities....... 43
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers,
directors and employees................................ 44
ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee
upon consolidation, merger, sale, transfer or lease -
execution of supplemental indentures - acts of
successor corporation.................................. 45
SECTION 10.2. Trustee may rely upon Opinion of Counsel............... 46
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee...... 46
SECTION 11.2. Trustee to be entitled to compensation - Trustee
not to be accountable for application of proceeds -
moneys held by Trustee to be trust funds............... 50
SECTION 11.3. Trustee to give holders of Debt Securities notice
of default............................................. 51
SECTION 11.4. Trustee acquiring conflicting interest must eliminate
it or resign........................................... 51
SECTION 11.5. Eligibility of Trustee................................. 51
SECTION 11.6. Resignation or removal of Trustee...................... 51
SECTION 11.7. Acceptance by successor Trustee........................ 53
SECTION 11.8. Successor to Trustee by merger or consolidation, etc... 54
SECTION 11.9. Limitations on right of Trustee as a creditor to
obtain payment of certain claims....................... 54
SECTION 11.10. Trustee to make annual report to holders of Debt
Securities -Trustee to make other reports to holders
of Debt Securities -holders of Debt Securities to
whom reports to be transmitted......................... 55
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SECTION 11.11. Preservation of information by Trustee - Trustee to
give certain information to holders of Debt
Securities upon application............................ 56
SECTION 11.12. Trustee may hold Debt Securities and otherwise
deal with Company...................................... 57
SECTION 11.13. Trustee may comply with any rule, regulation or
order of the Securities and Exchange Commission........ 57
SECTION 11.14. Appointment of Authenticating Agent.................... 57
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental
indenture for special purposes......................... 59
SECTION 12.2. Modification of Indenture with consent of holders
of Debt Securities..................................... 61
SECTION 12.3. Effect of supplemental indentures...................... 62
SECTION 12.4. Supplemental indentures to conform to Trust
Indenture Act.......................................... 62
SECTION 12.5. Notation on or exchange of Debt Securities............. 62
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.1. Applicability of Article............................... 63
SECTION 13.2. Right of holders of Debt Securities to convert
Debt Securities........................................ 63
SECTION 13.3. Issuance of shares of Capital Stock on conversion...... 64
SECTION 13.4. No payment or adjustment for interest or dividends..... 65
SECTION 13.5. Adjustment of conversion rate.......................... 65
SECTION 13.6. No fractional shares to be issued...................... 69
SECTION 13.7. Preservation of conversion rights upon consolidation,
merger, sale or conveyance............................. 69
SECTION 13.8. Notice to holders of Debt Securities of a series
prior to taking certain types of action................ 70
SECTION 13.9. Covenant to reserve shares for issuance on conversion
of Debt Securities..................................... 71
SECTION 13.10. Compliance with governmental requirements.............. 71
SECTION 13.11. Payment of taxes upon certificates for shares
issued upon conversion................................. 71
SECTION 13.12. Trustee's duties with respect to conversion
provisions............................................. 71
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ARTICLE XIV
GUARANTEES
SECTION 14.1. Guarantee.............................................. 72
SECTION 14.2. Obligations of the Guarantors Unconditional............ 73
SECTION 14.3. Execution of Guarantee................................. 74
SECTION 14.4. Withholding............................................ 74
SECTION 14.5. Limitation of Guarantee................................ 75
SECTION 14.6. Release of Guarantee................................... ▇▇
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▇▇▇▇▇▇▇▇▇ dated as of the 25th day of February, 1996, among CANANDAIGUA
BRANDS, INC., a Delaware corporation (hereinafter called the "Company"), the
wholly-owned subsidiaries of the Company set forth on the signature page hereto
(such wholly-owned subsidiaries then-existing and, as applicable, any successor
who replaces such subsidiary pursuant to the applicable provisions of this
Indenture and, thereafter, such successor, all together the "Guarantors") and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, an Illinois banking corporation with its
principal offices in Chicago, Illinois, as Trustee hereunder (hereinafter called
the "Trustee");
WHEREAS, the Company for its lawful corporate purposes has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of its debentures, notes or other evidences of indebtedness
(hereinafter called the "Debt Securities"), to be issued in one or more series
as herein provided; and
WHEREAS, each Guarantor has duly authorized the issuance of a guarantee of
the Debt Securities, of substantially the tenor set forth herein, and to provide
therefor each Guarantor has duly authorized the execution and delivery of this
Indenture and such Guarantee (as hereinafter defined).
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
THAT, in consideration of the premises and of the mutual covenants herein
contained and of the purchase and acceptance of the Debt Securities by the
holders thereof, and for other valuable consideration the receipt whereof is
hereby acknowledged, and intending to be legally bound hereby, it is hereby
agreed among the Company, the Guarantors and the Trustee, for the benefit of
those who shall hold the Debt Securities, as follows:
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT CONTROLLING
SECTION 1.1. Definitions. Unless otherwise specified or the context
otherwise requires, the terms defined in this Article I shall for all purposes
of this Indenture and of any indenture supplemental hereto have the meanings
herein specified, the following definitions to be equally applicable to both the
singular and plural forms of any of the terms herein defined. All accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States of
America, and 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.
Additional Amounts
The term "Additional Amounts" has the meaning specified in Section 14.4.
Affiliate
An "Affiliate" shall mean any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor under this Indenture.
Authenticating Agent
The term "Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 11.14 to act on behalf of the Trustee to authenticate Debt
Securities of one or more series.
Authorized Newspaper
The term "Authorized Newspaper" shall mean a newspaper in the English
language or in an official language of the country of publication, customarily
printed on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in the place in connection with which the
term is used or in the financial community of such place. If, because of
temporary suspension of publication or general circulation of any newspaper or
for any other reason, it is impossible or, in the opinion of the Trustee,
impracticable to make any publication of any notice required by this Indenture
in the manner herein provided, such publication or other notice in lieu thereof
which is made at the written direction of the Company by the Trustee shall
constitute a sufficient publication of such notice. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
place meeting the foregoing requirements and in each case on any Business Day.
Bankruptcy Law
The term "Bankruptcy Law" means Title 11 of the United States Code, as now
constituted or hereafter in effect, or any other applicable Federal or State
bankruptcy, insolvency or other similar law.
Board; Board of Directors
The term "Board" or "Board of Directors" shall mean the Board of Directors
of the Company or (i) the Executive Committee, if any, of such Board, (ii) any
other committee of such Board duly authorized to act hereunder, or (iii) any
officers of the Company duly authorized by such Board or by any duly authorized
committee of such Board to act hereunder.
Business Day
The term "Business Day" shall mean, with respect to any series of Debt
Securities, a day that, in the city (or in any of the cities, if more than one)
in which amounts are payable, as specified in the terms of such Debt Securities,
is not a day upon which banking institutions
-2-
are authorized or required by law, or by executive order issued by a
governmental authority or agency regulating such banking institutions, to close.
Capital Stock
The term "Capital Stock" shall mean stock of any class of the Company.
Certified Resolution
The term "Certified Resolution" shall mean 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.
Class A Common Stock
The term "Class A Common Stock" shall mean the Class A Common Stock, par
value $.01 per share, of the Company.
Closing Price
The term "Closing Price" on any day when used with respect to any class of
Capital Stock shall mean (i) if the stock is then listed or admitted to trading
on a national securities exchange in the United States, the last reported sale
price, regular way, for the stock as reported in the consolidated transaction or
other reporting system for securities listed or traded on such exchange, or (ii)
if the stock is listed on the National Association of Securities Dealers, Inc.
Automated Quotations System National Market System (the "Nasdaq National Market
System"), the last reported sale price, regular way, for the stock, as reported
on such list, or (iii) if the stock is not so admitted for trading on any
national securities exchange or the Nasdaq National Market System, the average
of the last reported closing bid and asked prices reported by the National
Association of Securities Dealers, Inc. Automated Quotations System as
furnished by any member in good standing of the National Association of
Securities Dealers, Inc., selected from time to time by the Company for that
purpose or as quoted by the National Quotation Bureau Incorporated. In the
event that no such quotation is available for any day, the Board of Directors
shall be entitled to determine the current market price on the basis of such
quotations as it considers appropriate.
Code
The term "the Code" means the Internal Revenue Code of 1986, as amended.
Company
The term "Company" shall mean Canandaigua Brands, Inc., a Delaware
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
-3-
Company Order
The term "Company Order" means a written order signed in the name of the
Company by its Chairman of the Board, President or any Vice President
(regardless of Vice Presidential designation), and by its Chief Financial
Officer, Treasurer, any Assistant Treasurer, Secretary or any Assistant
Secretary and delivered to the Trustee.
Debt Security
The term "Debt Security" shall mean one of the debentures, notes or other
evidences of indebtedness that are issued from time to time in one or more
series under this Indenture and, more particularly, any series of Debt
Securities authenticated and delivered under this Indenture.
holder of Debt Securities;
The term "holder of Debt Securities" or other similar term shall mean any
person who shall at the time be the registered holder of any Debt Security or
Debt Securities as shown by the register or registers kept by the Company or its
agent for that purpose in accordance with the terms of this Indenture.
Depositary
The term "Depositary" has the meaning specified in Section 2.13.
Event of Default
The term "Event of Default" shall mean an event listed in Section 7.1,
continued for the period of time, if any, and after the required notices, if
any, therein designated.
Global Security
The term "Global Security" has the meaning specified in Section 2.13.
Guaranteed Obligations
The term "Guaranteed Obligations" has the meaning specified in Section
14.1.
Guaranteed Parties
The term "Guaranteed Parties" shall mean all Persons who are now or who
hereafter become holders of Debt Securities and the Trustee.
Guarantees
-4-
The term "Guarantees" means the guarantee of each of the Guarantors as set
forth in Article XIV hereof, in one or more supplemental indentures hereto, and
any additional guarantee of the Debt Securities executed pursuant to the terms
thereof.
Guarantors
The term "Guarantors" shall have the meaning set forth in the Recitals
hereto.
Indenture
The term "Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented
and, unless the context otherwise indicates, shall include the form and terms of
each particular series of Debt Securities established as contemplated hereunder.
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, President or any Vice President (regardless of Vice
Presidential designation), and by its Chief Financial Officer, Treasurer, any
Assistant Treasurer, Secretary or any Assistant Secretary of the Company, in
their capacities as such officers of the Company and delivered to the Trustee.
Each such certificate shall include the statements provided for in Section 3.8,
if and to the extent required by the provisions thereof.
Opinion of Counsel
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel (who may be an employee of the Company) acceptable in form and
substance to the Trustee and delivered to the Trustee. Such opinion shall
include the statements provided for in Section 3.8, if and to the extent
required by the provisions thereof.
Original Issue Discount
The term "Original Issue Discount" with respect to any debt security,
including an Original Issue Discount Security, has the same meaning as set forth
in Section 1273 of the Code, or any successor provision, and the applicable
Treasury Regulations thereunder.
Original Issue Discount Security
The term "Original Issue Discount Security" means any series of a Debt
Security, including a series of a Debt Security that does not provide for the
payment of interest prior to maturity, which is issued at a price lower than the
principal amount thereof and which provides that upon redemption or acceleration
of the stated maturity thereof an amount less than the principal amount thereof
to be due and payable pursuant to Section 7.1.
-5-
Outstanding
The term "Outstanding," when used with respect to the Debt Securities,
shall, subject to Section 3.3, mean, as of the date of determination, all Debt
Securities theretofore authenticated and delivered under this Indenture, except:
(a) Debt Securities for the payment or redemption of which cash (or other form
of payment if permitted by the terms of such Debt Securities) in the necessary
amount shall have been deposited in trust with the Trustee or any paying agent
(other than the Company) provided that, if such Debt Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been duly given or provision satisfactory to the Trustee shall have been made
for giving such notice; (b) Debt Securities converted into Capital Stock in
accordance with Article XIII hereof, if the terms of such Debt Securities
provide for convertibility pursuant to Section 2.2; (c) Debt Securities paid or
in lieu of or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.9, unless proof
satisfactory to the Trustee is presented that any such Debt Securities are held
by persons in whose hands such Debt Securities are valid, binding and legal
obligations; and (d) Debt Securities which have been cancelled by the Trustee or
delivered to the Trustee or its designee for cancellation.
Paying Agent
The term "Paying Agent" shall mean any person authorized by the Company to
pay the principal of, premium, if any, and interest on any Debt Securities.
Person
The term "Person" shall mean an individual, a corporation, a limited
liability company, a partnership, an association, a joint-stock company, a
trust, any unincorporated organization, or a government or political subdivision
thereof.
Preferred Stock
The term "Preferred Stock" shall mean the Preferred Stock, par value $.01
per share, of the Company.
Principal
The term "principal" of a debt security, including any series of Debt
Securities, on any day and for any purpose means the amount (including, without
limitation, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of such date and for such purpose (in cluding, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Company upon any purchase or exchange at the option of the Company
or the holder of such debt security and upon any acceleration of the maturity of
such debt security).
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Principal amount
The term "principal amount" of a debt security, including any series of
Debt Securities, means the principal amount as set forth on the face of such
debt security.
Responsible Officer
The term "Responsible Officer", when used with respect to the Trustee,
shall mean any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
Securities Exchange Act
The term "Securities Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
Significant Subsidiary
The term "Significant Subsidiary" shall mean any subsidiary (i) whose
revenues exceed 10% of the total revenues of the Company, in each case for the
most recent fiscal year, or (ii) whose net worth exceeds 10% of the total
stockholders' equity of the Company, in each case as of the end of the most
recent fiscal years.
Trustee; corporate principal office
The term "Trustee" shall mean the trustee or trustees hereunder for the
time being, whether original or successor. "Trustee" as used with respect to
the Debt Securities of any series shall mean the Trustee with respect to Debt
Securities of such series. The term "principal office" of the Trustee shall
mean the principal office of the Trustee at which, at any particular time, the
corporate trust business of the Trustee shall be administered, which office as
of the date hereof is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
U.S. Government Obligations
The term "U.S. Government Obligations" means direct obligations of, or
obligations entitled to the full faith and credit of, the United States of
America.
SECTION 1.2. Trust Indenture Act definitions controlling. All terms used
in this Indenture which are defined in the Trust Indenture Act of 1939, as
amended, or which are by reference therein defined in the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in such Trust Indenture
Act and such Securities Act as they were respectively in force at the date of
this Indenture, except as otherwise provided in Section 12.3.
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ARTICLE II
FORM, ISSUE AND REGISTRATION OF DEBT SECURITIES
SECTION 2.1. Forms generally and dating. The Debt Securities of each
series shall be in the form or forms (including temporary or permanent global
form) established from time to time by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, which shall set
forth the information required by Section 2.2. The Debt Securities and the
Trustee's certificate of authentication shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture or by a resolution of the Board of Directors and may have such
notations, legends or endorsements as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture or as may be required
by law, stock exchange rule or usage. The Company shall approve and provide the
form of the Debt Securities and the form of any Guarantee thereto and any
notation, legend or endorsement thereon. If the form of Debt Securities of any
series is established by action taken pursuant to a resolution of the Board of
Directors, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
2.5 for the authentication and delivery of such Debt Securities.
Each Debt Security shall be dated the date of its authentication. The form
of the Trustee's certificate of authentication to be borne by the Debt
Securities shall be substantially as follows:
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Debt Securities of the series referred to on the reverse
hereof.
___________________________________,
as Trustee
By:________________________________
Authorized Officer
SECTION 2.2. Amount unlimited; Issuable in series.
The aggregate principal amount of the Debt Securities which may be
authenticated and delivered under this indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to one or more resolutions of the Board of Directors,
or established in or pursuant
-8-
to one or more indentures supplemental hereto, prior to the issuance of the Debt
Securities of any series:
(1) the title and designation of the Debt Securities of the series
(which shall distinguish Debt Securities of the series from all other Debt
Securities) including whether such Debt Securities shall be issued as
senior Debt Securities, senior subordinated Debt Securities or subordinated
Debt Securities, any subordination provisions particular to such series of
Debt Securities, and whether such Debt Securities are convertible and/or
exchangeable;
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for the Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debt Securities of the series pursuant to Section 2.6, 2.8, 2.9, 2.10,
2.11, 5.2 or 12.5) and except for any Debt Securities which pursuant to
Section 2.4 are deemed not to have been authenticated and delivered
hereunder;
(3) the date or dates (and whether fixed or extendable) on which the
principal of the Debt Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed, floating or adjustable) at
which the Debt Securities of the series shall bear interest, if any, the
method of calculating such rates, the date or dates from which such
interest shall accrue or the manner of determining such dates, the interest
payment dates on which such in terest shall be payable and the record dates
for the determination of holders of Debt Securities to whom interest is
payable;
(5) the place or places where the principal of and premium, if any,
and interest on the Debt Securities, if any, of the series shall be
payable;
(6) any provisions relating to the issuance of the Debt Securities of
such series at an original issue discount;
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise (including, without limitation,
the form or method of payment thereof if other than in cash);
(8) the obligation, if any, of the Company to redeem, purchase or
repay the Debt Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
holder of Debt Securities thereof and the price or prices at which and the
period or periods within which
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and the terms and conditions upon which the Debt Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation (including, without limitation, the form or method of
payment thereof if other than in cash), and any provisions for the
remarketing of such Debt Securities;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Debt Securities of the series shall
be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 7.1 or provable in bankruptcy pursuant to Section 7.2, or, if
applicable, which is convertible in accordance with Article XIII.
(11) any Events of Default with respect to the Debt Securities of a
particular series, in lieu of or in addition to those set forth herein and
the remedies therefor;
(12) the obligations, if any, of the Company to permit the conversion
of the Debt Securities of such series into Preferred Stock or Class A
Common Stock, or combination thereof, and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period and any other
provision in addition to or in lieu of those set forth in this Indenture
relative to such obligation);
(13) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Debt Securities of such
series;
(14) the currency or currencies, including composite currencies, in
which the Debt Securities of the series shall be denominated if other than
the currency of the United States of America, and, if so, whether the Debt
Securities of the series may be satisfied and discharged other than as
provided in Article VI;
(15) if other than the coin or currency in which the Debt Securities of
that series are denominated, the coin or currency in which payment of the
principal of, premium, if any, or interest on the Debt Securities of such
series shall be payable (and the manner in which the equivalent of the
principal amount thereof in the currency of the United States is to be
determined for any purpose, including for the determination of the
principal amount outstanding);
(16) if the principal of, premium, if any, or interest on the Debt
Securities of such series are to be payable, at the election of the Company
or a
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holder of Debt Securities thereof, in a coin or currency other than that in
which the Debt Securities are denominated, the period or periods within
which, and the terms and conditions upon which, such election may be made;
(17) if the amount of payments of principal of, premium, if any, and
interest on the Debt Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(18) whether and under what circumstances the Company will pay
additional amounts on the Debt Securities of the series held by a person
who is not a United States of America person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether
the Company will have the option to redeem such Debt Securities rather than
pay such additional amounts;
(19) if receipt of certain certificates or other documents or
satisfaction of other conditions will be necessary for any purpose,
including, without limitation, as a condition to the issuance of the Debt
Securities of such series in definitive form (whether upon original issue
or upon exchange of a temporary Debt Security of such series), the form and
terms of such certificates, documents or conditions;
(20) any other affirmative or negative covenants with respect to the
Debt Securities of such series;
(21) whether the Debt Securities of such series shall be issued in
whole or in part in the form of one or more Global Securities and in such
case, (i) the Depositary for such Global Security or Debt Securities, which
Depositary must be a clearing agency registered under the Securities
Exchange Act, (ii) the circumstances under which any such Global Security
may be exchanged for Debt Securities registered in the name of, and under
which any transfer of such Global Security may be registered in the name
of, any Person other than such Depositary or its nominee, if other than as
set forth in Section 2.13 and (iii) any other provisions regarding such
Global Securities which provisions may be in addition to or in lieu of, in
whole or in part, the provisions of Section 2.13;
(22) whether the Debt Securities are defeasible;
(23) whether the Debt Securities of such series shall be guaranteed in
whole or in part by the Guarantors, jointly and severally with all other
Guarantors in such case, and (i) the extent that the Debt Securities of the
series shall be guaranteed by the Guarantors; (ii) the ranking of such
Guarantee; (iii) the terms of subordination of such Guarantee; and (iv) the
form of any such Guarantee; and
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(24) any other terms of a particular series and any other provisions
expressing or referring to the terms and conditions upon which the Debt
Securities of such series are to be issued under the Indenture, which terms
and provisions are not in conflict with the provisions of this Indenture;
provided, however, that the addition to or subtraction from or variation of
Articles IV, V, VI, VII, and X (and Section 1.1, insofar as it relates to
the definition of certain terms as used in such Articles) with regard to
the Debt Securities of a particular series shall not be deemed to
constitute a conflict with the provisions of those Articles.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. Not all Debt Securities of any one series need be issued
at the same time, and, unless otherwise so provided, a series may be reopened
for issuances of additional Debt Securities of such series.
If any of the terms of the Debt Securities of a series are established by
action taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee with an
Officers' Certificate setting forth the terms of the Debt Securities of such
series. With respect to Debt Securities of a series which are not to be issued
at one time, such resolution of the Board of Directors or action may provide
general terms or parameters for Debt Securities of such series and provide
either that the specific terms of particular Debt Securities of such series
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with a Company Order as contemplated by
the proviso clause of Section 2.5.
SECTION 2.3. Denominations. The Debt Securities of each series shall be
registered Debt Securities without coupons, in such denominations as shall be
specified as contemplated by Section 2.2. In the absence of any such provisions
with respect to the Debt Securities of any series, the Debt Securities of such
series shall be issuable in denominations of $1,000 or of any integral multiple
of $1,000.
SECTION 2.4. Execution of Debt Securities; Authentication. The Debt
Securities shall be executed on behalf of the Company by its President, its
Treasurer or one of its Executive Vice Presidents or Vice Presidents, whose
signatures may be manual or facsimile, and its corporate seal shall be thereunto
affixed (or a facsimile thereof shall be engraved, printed, or otherwise
reproduced thereon) and attested by the manual or facsimile signature of its
Secretary or one of its Assistant Secretaries. The Guarantees shall be executed
on behalf of each Guarantor by such Guarantor's President, its Treasurer, one of
its Vice Presidents (regardless of Vice Presidential designation), or one of its
other officers (or an officer of the Company) duly authorized by its board of
directors to execute the Guarantee on behalf of such Guarantor, whose signatures
may be manual or facsimile, and its corporate seal shall be thereunto affixed
(or a facsimile thereof shall be engraved, printed, or otherwise reproduced
thereon) and attested by the manual or facsimile signature of its Secretary or
one of its
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Assistant Secretaries. In case any officer of the Company who shall have signed
any of the Debt Securities shall cease to be such officer before the Debt
Securities so signed and attested shall actually have been authenticated and
delivered by the Trustee or the Authenticating Agent or disposed of by the
Company, such Debt Securities nevertheless may be authenticated, issued and
delivered or disposed of with the same force and effect as though the person or
persons who signed or attested such Debt Securities had not ceased to be such
officer of the Company; and any such Debt Security may be signed and attested on
behalf of the Company by such persons, as at the actual date of the execution of
such Debt Security, shall be the proper officers of the Company, although at the
date of such Debt Security or the date of execution of this Indenture any such
person was not such officer.
No Debt Security of any series shall be entitled to the benefits hereof or
shall be or become valid or obligatory for any purpose unless there shall appear
on the Debt Security a certificate of authentication, substantially in the form
hereinbefore recited, manually executed by the Trustee for such series or an
Authenticating Agent; and such certificate on any series of Debt Securities
issued by the Company shall be conclusive evidence that it has been duly
authenticated and delivered hereunder.
Notwithstanding the foregoing, if any series of Debt Securities shall have
been duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Debt Security to the Trustee or its
designee for cancellation as provided in Section 2.11 together with a written
statement (which need not be accompanied by an Opinion of Counsel) stating that
such Debt Security has not been issued and sold by the Company, for all purposes
of this Indenture such Debt Security shall be deemed not to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
If the form or forms or terms of the Debt Securities of any series have
been established in or pursuant to one or more resolutions of the Board of
Directors or indentures supplemental hereto as permitted by Sections 2.1 and
2.2, in authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee and the Authenticating Agent shall be entitled to receive, and (subject
to Section 11.2) shall be fully protected in relying upon, a copy of such
resolution or resolutions delivered to the Trustee and the Authenticating Agent
and certified by the Secretary or Assistant Secretary of the Company or the
Guarantors to have been duly adopted by the Board of Directors of the Company or
the boards of directors of the Guarantors, as applicable, and to be in full
force and effect on the date of such certification, and an Opinion of Counsel
stating:
(1) if the form or forms of such Debt Securities and Guarantees have
been established by or pursuant to a resolution of the Board of Directors
or indenture supplemental hereto, that such form or forms have been
established in conformity with the provisions of this Indenture;
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(2) if the terms of such Debt Securities and Guarantees have been
established by or pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, that such terms have been established in
conformity with the provisions of this Indenture;
(3) that such Debt Securities and Guarantees, when authenticated and
delivered by the Trustee or an Authenticating Agent and issued by the
Company and the Guarantors in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company and the Guarantors, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles (or such other similar matters as in the opinion of such counsel
shall not materially adversely affect such enforceability); and
(4) that the issuance and authentication of such Debt Securities and
Guarantees to be issued will not conflict with, result in a breach or
constitute a default or with the giving of notice or the passage of time or
both, would not constitute a default, under the articles of incorporation
or bylaws of the Company or the Guarantors or result in such a default or
violation;
provided, however, that, with respect to Debt Securities of a series which are
not to be issued at one time, the Trustee and the Authenticating Agent shall be
entitled to receive such Opinion of Counsel only once at or prior to the time of
the first authentication of Debt Securities of such series and that the opinions
described in clauses (2) and (3) above may state, respectively,
(a) that, when the terms of such Debt Securities and Guarantees shall
have been established pursuant to a Company Order or pursuant to such
procedures as may be specified from time to time by a Company Order, all as
contemplated by and in accordance with a resolution of the Board of
Directors or an Officers' Certificate pursuant to a resolution of the Board
of Directors or indenture supplemental hereto, as the case may be, such
terms will have been established in conformity with the provisions of this
Indenture; and
(b) that such Debt Securities and Guarantees, when (i) executed by the
Company or the Guarantors, as the case may be, (ii) completed,
authenticated and delivered by the Trustee or Authenticating Agent in
accordance with this Indenture, (iii) issued and delivered by the Company
or the Guarantors, as the case may be, and (iv) paid for, all as
contemplated by and in accordance with the aforesaid Company Order or
specified procedures, as the case may be, will constitute valid and legally
binding obligations of the Company or Guarantor, as the case may be,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws
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or general applicability relating to or affecting the enforcement of
creditors' rights and to general equitable principles (or such other
similar matters as in the opinion of such counsel shall not materially
adversely affect such enforceability).
Notwithstanding the provisions of Sections 2.1, 2.2, 3.8 and this Section,
if all the Debt Securities of a series are not to be originally issued at one
time, the resolution of the Board of Directors or indenture supplemental hereto,
the certified copy of the record of action taken pursuant to such resolution or
supplemental indenture, the Officers' Certificate, the Company Order and any
other documents otherwise required pursuant to such Sections need not be
delivered at or prior to the time of authentication of each Debt Security of
such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Debt Security of such series to be issued;
provided, however, that any subsequent request by the Company to the Trustee or
the Authenticating Agent to authenticate Debt Securities of such series shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 3.8 at or prior to authentication of the first such Debt
Security shall be true and correct on the date thereof as if made on and as of
the date thereof.
The Trustee or the Authenticating Agent shall not be required to
authenticate such Debt Securities if the issue of such Debt Securities pursuant
to this Indenture will adversely affect the Trustee's or the Authenticating
Agent's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or the Authenticating Agent.
With respect to Debt Securities of a series which are not all issued at one
time, the Trustee and the Authenticating Agent may conclusively rely, as to the
authorization by the Company of any such Debt Securities or the Guarantors of
any such Guarantees, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel,
Officers' Certificate and other documents delivered pursuant to Sections 2.1,
2.2, 3.8 and this Section, as applicable, at or prior to the time of the first
authentication of Debt Securities of such series and Guarantees unless and until
such opinion, certificate or other documents have been superseded or revoked in
a writing delivered to the Trustee. In connection with the authentication and
delivery of Debt Securities of a series which are not all issued at one time,
the Trustee and the Authenticating Agent shall be entitled to assume that the
Company's instructions to authenticate and deliver such Debt Securities do not
violate any rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
SECTION 2.5. Issue of Debt Securities. The Trustee and the Authenticating
Agent, forthwith upon the execution and delivery of this Indenture and from time
to time thereafter, upon the execution and delivery to it of Debt Securities of
any series by the Company and the Guarantees by the Guarantors as herein
provided, and without any further action on the part of the Company and the
Guarantors, shall authenticate such Debt Securities up to a maximum amount, if
any, designated for such series pursuant to Section 2.2 and deliver them to or
upon
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the receipt of a Company Order; provided, however, that if not all the Debt
Securities of a series are to be issued at one time and if the resolution of the
Board of Directors or indenture supplemental hereto establishing such series as
contemplated by Sections 2.1 and 2.2 shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Debt
Securities and for determining the form or forms or terms of particular Debt
Securities of such series including, but not limited to, interest rate, if any,
maturity date, date of issuance and date from which interest, if any, shall
accrue.
SECTION 2.6. Transfer of Debt Securities. The transfer of any series of
Debt Securities may be registered by the registered owner thereof, in person or
by his attorney duly authorized in writing, at the office or agency of the
Company to be maintained by it as provided in Section 4.2, by delivering such
Debt Security for cancellation, accompanied by delivery of a duly executed
instrument of transfer, in form approved by the Company and satisfactory to the
Trustee or its designee, and thereupon the Company shall execute in the name of
the transferee or transferees, and the Trustee or the Authenticating Agent shall
authenticate and deliver, a new Debt Security or Debt Securities of the same
series and of like form for the same aggregate principal amount.
SECTION 2.7. Persons deemed owners of Debt Securities. Prior to due
presentation of any series of Debt Securities for registration of transfer, the
person in whose name a Debt Security of any series shall be registered, on books
kept for such purpose in accordance with Section 4.2, shall be deemed the
absolute owner thereof for all purposes of this Indenture, whether or not such
Debt Security is overdue, and neither the Company, the Trustee nor any Paying
Agent or conversion agent nor any series of Debt Securities registrar shall be
affected by notice to the contrary. Subject to the provisions of Section 2.12,
payment of or on account of the principal, premium, if any, and interest shall
be made only to or upon the order in writing of such regis tered owner thereof,
but such registration may be changed as above provided. All such payments shall
be valid and effectual to satisfy and discharge the liability upon such Debt
Security to the extent of the sum or sums so paid.
SECTION 2.8. Provisions for Debt Securities in temporary form. Until Debt
Securities of any series in definitive form are ready for delivery, the Company
and the Guarantors may execute and, upon its request in writing, the Trustee or
the Authenticating Agent shall authenticate and deliver, in lieu thereof and
subject to the same conditions, one or more printed or lithographed Debt
Securities in temporary form, substantially of the tenor of Debt Securities of
the same series, without a recital of specific redemption prices and with such
other appropriate omissions, variations and insertions, all as may be determined
by the Board of Directors. Until exchanged for Debt Securities of the same
series in definitive form such Debt Securities in tempo rary form shall be
entitled to the benefits of this Indenture. The Company and the Guarantors
shall, without unreasonable delay after the issue of Debt Securities in
temporary form, prepare, execute and deliver definitive Debt Securities of the
same series to the Trustee, and upon the presentation and surrender of Debt
Securities in temporary form, the Trustee or the Authenticating Agent shall
authenticate and deliver, in exchange therefor, Debt Securities of the same
series in definitive form for the same
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aggregate principal amount as the Debt Securities in temporary form surrendered.
Such exchange shall be made by the Company at its own expense and without any
charge therefor.
SECTION 2.9. Mutilated, destroyed, lost or stolen Debt Securities. Upon
receipt by the Company, the Guarantors, the Trustee and the Authenticating Agent
of evidence satisfactory to them that any Debt Security of any series has been
mutilated, destroyed, lost or stolen, and upon receipt of indemnity (and in case
of a destroyed, lost or stolen Debt Security, proof of ownership) satisfactory
to them, the Company and the Guarantors shall, in the case of a mutilated Debt
Security, and may in the case of a lost, stolen or destroyed Debt Security,
execute, and thereupon the Trustee or the Authenticating Agent shall
authenticate and deliver, a new Debt Security of the same series of like tenor
bearing a serial number not contemporaneously outstanding (bearing such
notation, if any, as may be required by the rules of any stock exchange upon
which the Debt Securities of the same series are listed or are to be listed), in
exchange and substitution for, and upon surrender and cancellation of, the
mutilated Debt Security, or in lieu of and in substitution for the Debt Security
so destroyed, lost or stolen; or, if any mutilated, destroyed, lost or stolen
Debt Security of any series shall have matured or be about to mature, instead of
issuing a new Debt Security, the Company, upon written notice to the Trustee or
the Authenticating Agent, may pay the same without surrender of the destroyed,
lost or stolen Debt Security. The Company may require payment of the expenses
which may be incurred by the Company or any agent thereof and the charges and
expenses of the Trustee and the Authenticating Agent in the premises. Any
series of Debt Securities issued under the provisions, of this Section 2.9 in
lieu of any series of Debt Securities alleged to have been destroyed, lost or
stolen, shall constitute an additional contractual obligation of the Company and
the Guarantors, whether or not the Debt Security alleged to have been destroyed,
lost or stolen shall be found at any time, and shall be equally and
proportionately entitled to the benefits of this Indenture with all other Debt
Securities of the same series issued under this Indenture.
All Debt Securities shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities, and shall
preclude, to the extent lawful, any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10. Exchanges of Debt Securities. Debt Securities of any series
may, upon surrender thereof as hereinafter provided in this Section 2.10, be
exchanged for one or more Debt Securities of the same series of the same
aggregate principal amount, in authorized denominations. The Debt Securities to
be exchanged shall be surrendered at the office or agency of the Company to be
maintained by it as provided in Section 4.2, accompanied by duly executed
instruments of transfer in a form acceptable to the Company, the Trustee and the
registrar, and the Company and the Guarantors shall execute and the Trustee or
the Authenticating Agent shall authenticate and deliver, in exchange therefor,
the Debt Security or Debt Securities of the same series, bearing numbers not
contemporaneously outstanding, which the holder of Debt Securities making the
exchange shall be entitled to receive. Every
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exchange of Debt Securities of any series shall be effected in such manner as
may be prescribed by the Company with the approval of the Trustee and registrar,
and as may be necessary to comply with the regulations of any stock ex change
upon which Debt Securities of such series are listed or are to be listed or to
conform to usage in respect thereof.
Upon every exchange or registration of transfer of Debt Securities, no
service charge shall be made but the Company may require the payment of any
taxes or other governmental charges required to be paid with respect to such
exchange or registration, as a condition precedent to the exercise of the
privilege of such exchange or registration.
All Debt Securities executed, authenticated and delivered in exchange or
upon registration of transfer shall be the valid obligations of the Company and
the Guarantors, evidencing the same debt as the Debt Securities surrendered, and
shall be entitled to the benefits of this Indenture to the same extent as the
Debt Securities in exchange for which they were authenticated and delivered.
The Company shall not be required to make exchanges or registrations of
transfer under any provision of this Article II of: (a) the Debt Securities of
any series for the period of 15 days next preceding the date of any designation
of Debt Securities of such series to be redeemed, as provided in Article V, or
(b) any series of Debt Securities or portion thereof called or to be called for
redemption.
SECTION 2.11. Cancellation of surrendered Debt Securities. All Debt
Securities of any series surrendered for the purpose of payment, exchange,
conversion or cancellation (including Debt Securities authenticated which the
Company has not issued and sold) shall, if surrendered to the Company or any
Paying Agent or conversion agent, be delivered to the Trustee or its designee
and cancelled by it, or, if surrendered to the Trustee or its designee, shall be
cancelled by it, and no Debt Securities shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture or as
otherwise provided in the resolution of the Board of Directors or indenture
supplemental hereto establishing such series as contemplated by Section 2.2.
All Debt Securities of any series surrendered for the purpose of redemption or
credit against any sinking fund shall similarly be delivered to the Trustee or
its designee for cancellation, and no Debt Securities shall be issued in lieu
thereof except Debt Securities of the same series in the case of redemption of a
Debt Security in part only. If the Company shall acquire any of the Debt
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Debt Securities unless and until the
same are delivered to the Trustee or its designee for cancellation. Unless
otherwise directed in writing by the Company, the Trustee or its designee shall
destroy all cancelled Debt Securities and furnish to the Company a certificate
evidencing such destruction.
SECTION 2.12. Payment of interest; Defaulted interest. Except as provided
in Section 13.4, interest (except defaulted interest) on the Debt Securities of
any series which is payable on any interest payment date shall be paid to the
persons who are holders of Debt Securities of such series at the close of
business on the record date specified for that purpose
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as contemplated by Section 2.2. At the option of the Company, payment of
interest on any series of Debt Securities may be made by check mailed to the
holder's registered address.
If the Company defaults in a payment of interest on the Debt Securities of
any series, it shall pay the defaulted interest to the persons who are holders
of Debt Securities of such series at the close of business on a subsequent
special record date. The Company shall fix the record date (which shall be not
less than five Business Days prior to the date of payment of such defaulted
interest) and payment date. At least 15 days before the record date, the
Company shall mail to each holder of Debt Securities of such series a notice
that states the record date, the payment date and the amount of defaulted
interest to be paid. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Debt Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee or any paying agent for such series an amount of
money in immediately available funds by 10:00 a.m. New York time on the payment
date equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to any Paying Agent
for such series for such deposit prior to the date of the proposed payment. The
Company may pay defaulted interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debt Security may
be listed, and upon 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 payment shall be deemed practicable by the Trustee.
SECTION 2.13. Global Securities; Depositary. For the purpose of this
Section, the term "Agent Member" means a member of, or participant in, a
Depositary; the term "Depositary" means, with respect to Debt Securities
issuable or issued in whole or in part in the form of one or more Global
Securities, the entity designated as Depositary by the Company pursuant to
Section 2.2, and, if at any time there is more than one such person,
"Depositary" as used with respect to the Debt Securities shall mean the
respective Depositary with respect to a particular series of Debt Securities;
and the term "Global Security" means a global certificate evidencing all or part
of the series of Debt Securities as shall be specified herein, issued to the
Depositary for the series or such portion of the series, and registered in the
name of such Depositary or its nominee. The Global Security may provide that it
shall represent the aggregate amount of Outstanding Debt Securities from time to
time endorsed thereon which may from time to time be reduced to reflect
exchanges. Any endorsement to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities shall be made by the Trustee.
Notwithstanding Section 2.10, except as otherwise specified as contemplated
by Section 2.2, hereof, any Global Security shall be exchangeable only as
provided in this paragraph. A Global Security shall be exchangeable pursuant to
this Section 2.13 if (i) the Depositary noti fies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at
any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act, (ii) the Company in its sole discretion determines that
all Global Securities of any series then outstanding under this Indenture shall
be exchangeable for definitive Debt Securities of such series in registered form
or (iii) an Event of Default with
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respect to the Debt Securities of the series represented by such Global Security
has occurred and is continuing. Any Global Security of such series exchangeable
pursuant to the preceding sentence shall be exchangeable for definitive Debt
Securities of such series in registered form, bearing interest (if any) at the
same rate or pursuant to the same formula, having the same date of issuance,
redemption, conversion (if any) and other provisions, and of differing
denominations aggregating a like amount. Such definitive Debt Securities of such
series shall be registered in the names of the owners of the beneficial
interests in such Global Securities of such series as such names are from time
to time provided by the relevant participants in the Depositary holding such
Global Securities (as such participants are identified from time to time by such
Depositary).
No Global Security may be transferred except as a whole by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor of the Depositary or a nominee of
such successor. Except as provided above, owners solely of beneficial interests
in a Global Security shall not be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
holders of Debt Securities thereof for any purpose under this Indenture.
Any Global Security that is exchangeable pursuant to the preceding
paragraph shall be exchangeable for Debt Securities of such series in authorized
denominations and registered in such names as the Depositary that is the holder
of Debt Securities of such Global Securities of such series shall direct.
In the event that a Global Security is surrendered for redemption in part
pursuant to Section 5.2 or 5.5, the Company shall execute, and the Trustee or
the Authenticating Agent shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security in a
denomination and tenor equal to and in exchange for the unredeemed portion of
the principal for the Global Security so surrendered.
The Agent Members shall have no rights under this Indenture with respect to
any Global Security held on their behalf by a Depositary, and such Depositary
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, 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 a Depositary or
impair, as between a Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of a Debt
Security of any series, including without limitation the granting of proxies or
other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
of Debt Securities is entitled to give or take under this Indenture.
The Trustee shall not be required to authenticate Global Securities until
it has received documentation satisfactory to it.
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ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Rights under Indenture limited to the parties and holders of
Debt Securities. Nothing in this Indenture or the Debt Securities, express or
implied, is intended or shall be construed to confer upon, or to give to, any
person or corporation, other than the parties hereto, their successors and
assigns, and the holders of the Debt Securities, any right, remedy or claim
under or by reason of this Indenture or any provision hereof; and the provisions
of this Indenture are for the exclusive benefit of the parties hereto, their
successors and assigns, and the holders of the Debt Securities.
SECTION 3.2. Certificate of independent accountants conclusive. Unless
otherwise specifically provided, the certificate or opinion of an independent
firm of public accountants of recognized standing selected by the Board of
Directors and acceptable to the Trustee in the exercise of reasonable care
(which firm may be regular independent accountants to the Company ), shall be
conclusive evidence of the correctness of any computation made under the
provisions of this Indenture, and wherever reference is made in this Indenture
to "generally accepted accounting principles" the certificate or opinion of such
a firm shall be conclusive evidence thereof. The Company shall furnish to the
Trustee upon its request a copy of any such certificate or opinion.
SECTION 3.3. Treatment of Debt Securities owned or held by the Company in
determining required percentages. For all purposes of this Indenture, in
determining whether the holders of a required percentage or proportion of the
principal amount of Debt Securities of one or more series have concurred in any
request, waiver, vote, direction or consent, Debt Securities owned or held by or
for the account or for the benefit of the Company or any other obligor under
this Indenture or any Affiliate shall be disregarded and deemed not Outstanding,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such request, waiver, direction or consent, only
Debt Securities which the Trustee knows to be so owned or held shall be so
disregarded. Debt Securities so owned which have been pledged in good faith to
secure an obligation may be regarded as Outstanding for all such purposes, if
the Trustee receives an Officers' Certificate stating that said Debt Securities
have been so pledged, that the pledgee is entitled to vote with respect to such
Debt Securities and that the pledgee is not the Company or any other obligor on
the Debt Securities, an Affiliate of the Company or an Affiliate of such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be conclusive, and, subject to the
provisions of Section 11.1 of this Indenture, shall afford full protection to
the Trustee.
SECTION 3.4. Remaining provisions not affected by invalidity of any other
provisions -required provisions of Trust Indenture Act of 1939 to control. In
case any one or more of the provisions contained in this Indenture or in the
Debt Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality
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or unenforceability shall not affect any other provision of this Indenture, but
this Indenture shall be construed as if such invalid, illegal or unenforceable
provisions had never been contained herein.
If any provision of this Indenture limits, qualifies or conflicts with any
other provision of this Indenture which is required to be included in an
indenture qualified under the Trust Indenture Act of 1939, such provision which
is so required to be included shall control. If any provisions of this
Indenture modifies or excludes any provisions of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
SECTION 3.5. Company released from Indenture requirements if entitled to
have Indenture cancelled. Whenever by the terms of this Indenture the Company
and the Guarantors shall be required to do or not to do anything so long as any
of the Debt Securities shall be Outstanding of any series, the Company and the
Guarantors shall, notwithstanding any such provision, not be required to comply
with such provision with respect to such series if it shall be entitled to have
this Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the holders of any of the Debt Securities of such series
shall have failed to present and surrender such Debt Securities for payment
pursuant to the terms of this Indenture.
SECTION 3.6. Date of execution. Although this Indenture, for convenience
and for the purpose of reference, is dated as of the date first above written,
the actual date of execution by the Company, the Guarantors and by the Trustee
is as indicated by their respective acknowledgements hereto annexed.
SECTION 3.7. Execution of documents furnished under the Indenture. Unless
otherwise expressly provided, any order, notice, request, demand, certificate or
statement of the Company or any Guarantor required or permitted to be made or
given under any provision hereof shall be sufficiently executed if signed by its
Chairman of the Board, President or any Vice President (regardless of Vice
Presidential designation), and by its Chief Financial Officer, Treasurer, any
Assistant Treasurer, Secretary or any Assistant Secretary.
SECTION 3.8. Officers' Certificate and Opinions of Counsel to be furnished
to Trustee. Upon any application, demand or request by the Company or any
Guarantor to the Trustee to take any action under any of the provisions of this
Indenture, the Company and each Guarantor, as the case may be, 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 have been complied with and that such
action is in compliance with applicable law.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the
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nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (d) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company and any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters, information with respect to
which is in the possession of the Company and the Guarantors, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company and the Guarantors, as the case may be, unless such
counsel knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company, any
Guarantor, or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Company and the Guarantors, as the case
may be, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 3.9. Presentation of notices and demands. All notices to or
demands upon the Trustee shall be in writing and may be served or presented at
the principal office of the Trustee. Any notice to or demand upon the Company
or any Guarantor shall be deemed to have been sufficiently given or served by
the Trustee or the holders of Debt Securities, for all purposes, by being mailed
by first class mail addressed to the Company, attention of the President, at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address or
to such other counsel, as may be filed in writing by the Company with the
Trustee.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to holders of Debt Securities of any event, such notice
shall be sufficiently given to holders of Debt Securities if in writing and
mailed, first-class postage prepaid, to each holder of a Debt Security affected
by such event, at the address of such holder as it appears in the Debt Security
register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice.
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In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to holders of Debt
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to holders of Debt Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular holder of a Debt Security shall affect the sufficiency
of such notice with respect to other holders of Debt Securities.
SECTION 3.10. Successors and assigns bound by Indenture. All the
covenants, promises and agreements in this Indenture contained by or on behalf
of the Company, the Guarantors or by or on behalf of the Trustee, shall bind and
inure to the benefit of their respective successors and assigns, whether so
expressed or not.
SECTION 3.11. Descriptive headings for convenience only. The descriptive
headings of the several Articles of this Indenture are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 3.12. New York law to govern. This Indenture and each Debt
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
said jurisdiction, and the rights, obligations, duties, immunities and
limitations of rights of the Trustee shall be construed in accordance with the
laws of the State of New York.
SECTION 3.13. Indenture may be executed in counterparts. This Indenture
may be simultaneously executed in any number of counterparts, each of which when
so executed and delivered shall be an original, but such counterparts shall
together constitute but one and the same instrument. ▇▇▇▇▇▇ Trust and Savings
Bank, as Trustee, hereby accepts the trusts in this Indenture declared and
provided upon the terms and conditions hereinbefore set forth.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
SECTION 4.1. Payment of Principal and interest. The Company and each
Guarantor will for the benefit of each series of Debt Securities duly and
punctually pay or cause to be paid the principal of, premium, if any, and
interest on the Debt Securities of such series at the times and place and in the
manner specified in this Indenture, the Guarantees and in the Debt Securities of
such series. At the option of the Company, interest on the Debt Securities
shall be payable without presentation of such Debt Securities by a check to the
registered holder. Any payment of principal and any premium or interest
required to be made on an interest payment date, redemption date or at maturity
which is not a Business Day need not be made on such date, but may be made on
the next succeeding Business Day with the same force and
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effect as if made on such interest payment date, redemption date or at maturity,
as the case may be, and no interest shall accrue for the period from and after
such interest payment date, redemption date or maturity.
SECTION 4.2. Maintenance of office or agency. So long as any of the Debt
Securities of any series remain unpaid, the Company will at all times keep an
office or agency in New York, New York, where Debt Securities of such series may
be presented for registration of transfer and exchange as in this Indenture
provided, where notices and demands with respect to the Debt Securities and this
Indenture may be served and where the Debt Securities may be presented for
payment or, for Debt Securities of each series that is convertible, for
conversion. The principal office of the Trustee shall be the office or agency
for all of the aforesaid purposes unless otherwise provided in a supplemental
indenture or unless the Company shall maintain some other office or agency with
respect to the Debt Securities of any series for such purposes and shall give
the Trustee written notice of the location thereof. In case the Company shall
fail to maintain such office or agency, presentations may be made and notices
and demands may be served at the principal office of the Trustee.
The Company shall keep, at said office or agency, a register or registers
in which, subject to such reasonable regulations as it may prescribe, the
Company shall register or cause to be registered Debt Securities of each series
and shall register or cause to be registered the transfer or exchange of Debt
Securities of each series as in Article II provided. Such register or registers
shall be in written form in the English language or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, such register or registers shall be open for inspection by the Trustee.
SECTION 4.3. Corporate existence. Subject to Article X hereof, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the rights (charter and
statutory) and franchises of the Company and each Guarantor; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business and its Guarantors as a whole and that
the loss thereof is not disadvantageous in any material respect to the holders
of Debt Securities.
SECTION 4.4. Restrictions on mergers, sales and consolidations. So long
as any of the Debt Securities remain unpaid, neither the Company nor any
Guarantor will consolidate or merge with or sell, convey or lease all or
substantially all of its property to any other corporation, partnership or
limited liability company except (a) to the extent expressly permitted pursuant
to the terms of any supplemental indenture governing any series of the Debt
Securities and (b) as otherwise permitted in Article X hereof.
SECTION 4.5. Further assurances. From time to time whenever requested by
the Trustee, the Company and the Guarantors will execute and deliver such
further instruments and assurances and do such further acts as may be reasonably
necessary or proper to carry out
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more effectually the purposes of this Indenture or to secure the rights and
remedies hereunder of the holders of the Debt Securities of any series.
SECTION 4.6. File certain reports and information with the Trustee and the
Securities and Exchange Commission - transmit to holders of Debt Securities
summaries of certain documents filed with the Trustee - furnish list of holders
of Debt Securities to the Trustee. The Company will:
(a) file with the Trustee, within 15 days after the Company files the
same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports which the
Company may be required to file with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 (or copies of such portions thereof as may be prescribed by the
Securities and Exchange Commission); or, if the Company is not required to
file with the Securities and Exchange Commission information, documents or
reports pursuant to either Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, then the Company will file with the Trustee and will
file with the Securities and Exchange Commission, in accordance with rules
and regulations prescribed by the Securities and Exchange Commission, such
of the supplementary and periodic information, documents and reports
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the Securities and Exchange Commission,
in accordance with the rules and regulations prescribed from time to time
by the Securities and Exchange Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required
by such rules and regulations;
(c) transmit to the holders of Debt Securities, in the manner and to
the extent provided in subdivision (c) of Section 11.10, such summaries of
any information, documents and reports required to be filed with the
Trustee pursuant to the provisions of subdivisions (a) and (b) of this
Section 4.6 as may be required by the rules and regulations of the
Securities and Exchange Commission; and
(d) furnish or cause to be furnished to the Trustee, not more than 15
days after each record date (but in no event less frequently than every six
months) for the payment of interest with respect to Debt Securities of any
series, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require containing all information
in the possession or control of the Company or of any Paying Agent, other
than the Trustee, as to the names and addresses of the holders of Debt
Securities of such series obtained since the date as of which the next
previous list, if any, was furnished; provided, that so long as the Trustee
is Debt Security registrar for such series, no such list need be furnished.
Any such list may be dated as
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of a date not more than 15 days prior to the time such information is
furnished or caused to be furnished, and need not include information
received after such date (excluding from any such list names and addresses
received by the Trustee in its capacity as Debt Security registrar).
SECTION 4.7. File statement by officers annually with the Trustee. Within
120 days after the close of the fiscal year ending February 28, 1999, and within
120 days after the close of each fiscal year thereafter, the Company will file
with the Trustee a brief certificate from the chief executive officer, chief
financial officer or treasurer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.8. Duties of Paying Agent. The Company will cause each Paying
Agent for the Debt Securities of any series other than the Trustee to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee:
(a) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest on the Debt
Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the holders of the Debt Securities of such series;
(b) that it will give the Trustee written notice of any failure by the
Company (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of, premium, if any, or interest on the
Debt Securities of such series when the same shall be due and payable; and
(c) that it will, at any time during the continuance of any Event of
Default with respect to such series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
If the Company acts as its own Paying Agent for the Debt Securities of any
series, it will, on or before each due date of the principal of, premium, if
any, or interest on the Debt Securities of such series, set aside and segregate
and hold in trust for the benefit of the holders of the Debt Securities of such
series a sum sufficient to pay such principal, premium, if any, or interest and
will notify the Trustee of such action or any failure to take such action.
Whenever the Company shall have one or more Paying Agents for any series of
Debt Securities, it will, on or before each due date of the principal of,
premium, if any, or interest on any Debt Securities of such series, deposit with
the Paying Agent or Agents for the Debt Securities of such series a sum, by
10:00 a.m. New York time in immediately available funds on the payment date,
sufficient to pay the principal, premium, if any, or interest so becoming
-27-
due with respect to the Debt Securities of such series, and (unless such paying
agent is the Trustee) the Company will promptly notify the Trustee in writing of
any failure so to act.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to the Debt Securities of one or
more series or for any other purpose, pay, or by Company order direct any Paying
Agent for such series to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such payment.
Anything in this Section 4.8 to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section 4.8 shall be subject to the
provisions of Section 6.3.
ARTICLE V
REDEMPTION OF DEBT SECURITIES; SINKING FUND
SECTION 5.1. Applicability of Article. Debt Securities of any series
which are redeemable before their stated maturity at the election of the Company
or through the operation of any sinking fund for the retirement of Debt
Securities of such series shall be redeemable in accordance with their terms
established pursuant to Section 2.2 and (except as otherwise established
pursuant to Section 2.2 for Debt Securities of such series) in accordance with
this Article.
SECTION 5.2. Notice of redemption to be given to Trustee - deposit of cash
(or other form of payment) with Trustee - selection by Trustee of Debt
Securities to be redeemed. Not less than 30 days (or such lesser number of days
as the Trustee shall approve) nor more than 60 days (or such greater number of
days as the Trustee shall approve) prior to the date fixed by the Company for
the redemption at the option of the Company of any Debt Securities of any series
which are subject to redemption or portions thereof, the Company shall give
written notice, by delivering a Company Order to the Trustee, stating the
aggregate principal amount of Debt Securities of such series which the Company
elects to redeem and the date and place fixed for redemption, that the Company,
in the case of any redemption of Debt Securities subject to any restrictions on
such redemption provided in the terms of Debt Securities of such series
established pursuant to Section 2.2 or elsewhere in this Indenture, is in
compliance with such restrictions. On or before 10:00 a.m. New York time of the
date fixed for redemption, the Company shall deposit with the Trustee or the
Paying Agent money in immediately available funds on such redemption date (or
other form of payment if permitted by the terms of such Debt Securities) in an
amount sufficient to redeem on the date fixed for redemption all the Debt
Securities of such series or portions thereof to be redeemed, other than any
Debt Securities of such series called for redemption on such date which have
been converted prior to the date of such deposit, at the appropriate redemption
price, together with any accrued interest to the date fixed for redemption. If
less than all the Debt Securities then
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Outstanding of such series are to be redeemed, the Trustee shall select,
substantially pro rata or by lot, in such manner as it shall deem appropriate
and fair, in its sole discretion, the numbers of the Debt Securities to be
redeemed as a whole or in part, and shall thereafter promptly notify the Company
in writing of the numbers of the Debt Securities to be redeemed; provided,
however, that Debt Securities of such series registered in the name of the
Company shall be excluded from any such selection for redemption until all Debt
Securities of such series not so registered shall have been previously selected
for redemption. For the purpose of such selection in case of redemption of less
than all of the Debt Securities of any series, the Trustee and the Company shall
have the option to treat as Outstanding Debt Securities any Debt Securities of
such series which are surrendered for conversion after the fifteenth day
immediately preceding the mailing of the notice of such redemption, and need not
treat as Outstanding Debt Securities any Debt Securities authenticated and
delivered during such period in exchange for the unconverted portion of any Debt
Securities converted in part during such period. In case any series of Debt
Securities shall be redeemed in part only, the notice of redemption shall
specify the principal amount thereof to be redeemed and shall state that, upon
surrender thereof for redemption, a new Debt Security or new Debt Securities of
the same series of an aggregate principal amount equal to the unredeemed portion
of such Debt Security will be issued in lieu thereof; and in such case the
Company shall execute and the Trustee or the Authenticating Agent shall
authenticate and deliver such new Debt Security or Debt Securities of such
series to or upon the written order of the holder of Debt Securities, at the
expense of the Company. Provisions of this Indenture that apply to Debt
Securities called for redemption also apply to portions of Debt Securities
called for redemption.
Upon or after the receipt of such notice, the Trustee, in the name of the
Company and as its agent, shall mail by first-class mail, postage prepaid, to
each registered holder of a Debt Security to be redeemed in whole or in part at
his last address appearing on the registration books of the Company, a notice of
redemption. Such notice of redemption shall identify the Debt Securities to be
so redeemed in whole or in part and whether such Debt Securities are to be
redeemed in whole or in part and shall state: (i) the date fixed for
redemption; (ii) the redemption price at which Debt Securities are to be
redeemed and method of payment, if other than in cash; (iii) if applicable, the
current conversion price or rate; (iv) if applicable, that the right of the
holder of Debt Securities to convert Debt Securities called for redemption shall
terminate at the close of business on the date fixed for redemption (or such
other day as may be specified as contemplated by Section 2.2 for Debt Securities
of any series); (v) if applicable, that holders of Debt Securities who want to
convert Debt Securities called for redemption must satisfy the requirements for
conversion contained in such Debt Securities; (vi) that, subject to Section
13.4, interest, if any, accrued to the date fixed for redemption will be paid as
specified in said notice and that on and after said date interest thereon shall
cease to accrue; (vii) the provision of the Debt Security or this Indenture
under which the redemption is being made; and (viii) that the Company so elects
to redeem such Debt Securities or portions thereof at the place or places
specified in such notice. Such notice shall be mailed not later than the tenth,
and not earlier than the sixtieth, day before the date fixed for redemption.
Any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
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notice; and failure duly to give such notice by mail, or any defect in such
notice, to the holder of any series of Debt Securities designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debt Security.
The Company shall pay to the Trustee the cost of mailing notices of
redemption and any other necessary expenses incurred by the Trustee in
connection therewith.
SECTION 5.3. Debt Securities called for redemption to become due - rights
of holders of redeemed Debt Securities - return of funds on conversion. The
notice of election to redeem having been mailed as hereinbefore provided, the
Debt Securities or portions thereof called for redemption shall become due and
payable on the redemption date at the applicable redemption price, together with
interest accrued to the date fixed for redemption, at the place or places
specified in such notice, and if cash (or other form of payment if permitted by
the terms of such Debt Securities) in the amount necessary to redeem such Debt
Securities or portions thereof has been deposited with the Trustee, interest on
such Debt Securities or portions thereof shall cease to accrue from and after
the date fixed for redemption (unless the Company shall default in the payment
of the redemption price, plus accrued interest, if any) and the right to convert
such Debt Securities or portions thereof, if the terms of such Debt Securities
provide for conversion pursuant to Section 2.2, shall terminate at the close of
business on the date fixed for redemption or such other day as may be specified
as contemplated by Section 2.2 for Debt Securities of such series. The
respective registered holders of Debt Securities or portions thereof so called
for redemption shall be entitled to receive payment of the applicable redemption
price, together with interest accrued to the date fixed for redemption on or
after the date fixed for redemption (unless the Company shall default in the
payment of the redemption price, plus accrued interest, if any), upon
presentation and surrender at the place or places of payment specified in such
notice. Notwithstanding the foregoing, subject to Section 13.4, if the record
date for payment of interest is on or prior to the redemption date, such
interest shall be payable to the persons who are holders of such Debt Securities
on such record date according to the terms of such Debt Securities and Section
2.12.
If any series of Debt Securities called for redemption pursuant to Section
5.1 is converted pursuant to Article XIII, any monies deposited with the Trustee
for the purpose of paying or redeeming any such Debt Security shall be promptly
paid to the Company.
SECTION 5.4. Credits against sinking fund. Against any one or more
sinking fund payments to be made pursuant to the terms of the Debt Securities of
any series providing for a sinking fund, the Company may elect, by delivery of
an Officers' Certificate to the Trustee, at least 45 days prior to the sinking
fund payment date (or such shorter period as may be acceptable to the Trustee or
is otherwise specified as contemplated by Section 2.2 for Debt Securities of any
series), to take credit for any Debt Securities of such series or portions
thereof acquired or redeemed by the Company, pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, which have not
previously been used by the Company for the purposes permitted in this Section
5.4 and for any Debt Securities which have been converted
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pursuant to the terms of such Debt Securities. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. Upon any such election the Company shall receive credit against
such sinking fund payments required to be made in the order in which they are to
be made. Any series of Debt Securities for which credit is elected to be taken
which shall not theretofore have been delivered to the Trustee for cancellation
shall at the time of such election be delivered to the Trustee for cancellation
by the Trustee.
SECTION 5.5. Redemption through sinking fund. Each sinking fund payment
made under the terms of the Debt Securities of any series established pursuant
to Section 2.2 shall be applied to the redemption of Debt Securities of such
series on the date for redemption specified in the Debt Securities of such
series next succeeding such sinking fund payment date; provided, however, if at
any time the amount of cash to be paid into the sinking fund for such series on
the next succeeding such sinking fund payment date; provided, however, if at any
time the amount of cash to be paid into the sinking fund for such series on the
next succeeding sinking fund payment date, together with any unused balance of
any preceding sinking fund payment or payments for such series, shall not exceed
in the aggregate $10,000, the Trustee, unless requested by the Company, shall
not give notice of the redemption of Debt Securities of such series through the
operation of the sinking fund on the succeeding date for redemption specified in
the Debt Securities of such series. At least 45 days (or such lesser number of
days as the Trustee shall approve) prior to the date on which a sinking fund
payment with respect to the Debt Securities of any series is due, the Company
shall give written notice to the Trustee of the principal amount of Debt
Securities of such series registered in the name of the Company (which shall be
excluded from such redemption) and the Trustee shall select, substantially pro
rata or by lot, in such manner as it shall deem appropriate and fair, the
principal amount of Debt Securities of such series to be redeemed in accordance
with the terms of the Debt Securities of such series after allowance for any
credit elected under Section 5.4 and shall, in the name and at the expense of
the Company and as its agent, give notice of such redemption, all in the manner
provided for in Section 5.2, except that such notice shall state that the Debt
Securities of such series are being redeemed for the sinking fund. The notice
of redemption having been mailed as hereinbefore provided, the Debt Securities
or portions thereof called for redemption shall become due and payable on the
next succeeding date for redemption specified in the Debt Securities of such
series at the sinking fund redemption price thereof, all in the manner and with
the effect provided for in Section 5.3.
Any sinking fund payment not so required to be applied to the redemption of
Debt Securities of any series on the date for redemption specified in the Debt
Securities of such series next succeeding any sinking fund payment date may, at
the direction of the Company as evidenced by a Company Order, be applied by the
Trustee prior to the forty-fifth day preceding the next following sinking fund
payment date for such series, in such manner and from time to time, in such
amount as the Company may direct the Trustee in writing, so far as such moneys
shall be adequate, to the purchase for the sinking fund of Debt Securities of
such series or portions thereof, in the open market, from the Company or
otherwise, at prices
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(exclusive of accrued interest and brokerage commissions) not in excess of the
sinking fund redemption price for such series. The Company agrees to pay to the
Trustee, upon request, accrued interest and brokerage commissions paid by the
Trustee with respect to any Debt Securities of such series so purchased by the
Trustee and such accrued interest and brokerage commissions shall not be charged
against the sinking fund for such series.
Any unused balance of sinking fund moneys with respect to Debt Securities
of any series remaining in the hands of the Trustee on the forty-fifth day
preceding the sinking fund payment date for such series in any year shall be
added to any sinking fund payment for such series to be made in cash in such
year, and together with such payment, if any, shall be applied to the redemption
or purchase of Debt Securities of such series in accordance with the provisions
of this Section 5.5, provided that any sinking fund moneys so remaining in the
hands of the Trustee after the date specified in the Debt Securities of such
series and not utilized in the purchase of Debt Securities of such series as
provided in this Section 5.5 shall be applied by the Trustee to the payment of
Debt Securities at maturity.
SECTION 5.6. Debt Securities no longer Outstanding after notice to Trustee
and deposit of cash. If the Company, having given notice to the Trustee as
provided in Section 5.1 or 5.2, shall have deposited with the Trustee or the
Paying Agent, for the benefit of the holders of any Debt Securities of any
series or portions thereof called for redemption in whole or in part cash or
other form of payment if permitted by the terms of such Debt Securities (which
amount shall be immediately due and payable to the holders of such Debt
Securities or portions thereof) in the amount necessary so to redeem all such
Debt Securities or portions thereof on the date fixed for redemption and
provision satisfactory to the Trustee shall have been made for the giving of
notice of such redemption, such Debt Securities, or portions thereof, shall
thereupon, for all purposes of this Indenture, be deemed to be no longer
Outstanding, and the holders thereof shall be entitled to no rights thereunder
or hereunder, except the right to receive payment of the applicable redemption
price, together with interest accrued to the date fixed for redemption, on or
after the date fixed for redemption of such Debt Securities or portions thereof
and the right to convert such Debt Securities or portions thereof, if the terms
of such Debt Securities provide for convertibility pursuant to Section 2.2, at
or prior to the close of business on the date fixed for redemption.
SECTION 5.7. Conversion arrangement on call for redemption. In connection
with any redemption of Debt Securities, the Company may arrange for the purchase
and conversion of any Debt Securities called for redemption by an agreement with
one or more investment bankers or other purchasers to purchase such Debt
Securities by paying to the Trustee or the Paying Agent in trust for the holders
of Debt Securities, on or before 10:00 a.m. New York time on the redemption
date, an amount no less than the redemption price, together with interest, if
any, accrued to the redemption date of such Debt Securities, in immediately
available funds. Notwithstanding anything to the contrary contained in this
Article V, the obligation of the Company and the Guarantors to pay the
redemption price of such Debt Securities, including all accrued interest, if
any, shall be deemed to be satisfied and discharged to the extent such amount is
so paid by such purchasers. If such an agreement is entered into, any Debt
Securities not duly surrendered for conversion by the holders thereof
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may, at the option of the Company, be deemed, to the fullest extent permitted by
law, acquired by such purchasers from such holders and (notwithstanding anything
to the contrary contained in Article XIII) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the last day
on which Debt Securities of such series called for redemption may be converted
in accordance with this Indenture and the terms of such Debt Securities, subject
to payment of the above amount aforesaid. The Trustee or the Paying Agent shall
hold and pay to the holders of Debt Securities whose Debt Securities are
selected for redemption any such amount paid to it in the same manner as it
would moneys deposited with it by the Company for the redemption of Debt
Securities. Without the Trustee's and the Paying Agent's prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Debt Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any Debt
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee and the Paying Agent in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
ARTICLE VI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 6.1. Satisfaction and discharge of Indenture with respect to Debt
Securities of any series. If (a) the Company shall deliver to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated (other
than any such Debt Securities which shall have been destroyed, lost or stolen
and in lieu of or in substitution for which other such Debt Securities shall
have been authenticated and delivered or Debt Securities for whose payment money
(or other form of payment if permitted by the terms of such Debt Securities) has
theretofore been held in trust and thereafter repaid to the Company, as provided
in Section 6.3) and not theretofore cancelled, or (b) the Company shall
irrevocably deposit (subject to Section 6.3) with the Trustee or Paying Agent as
trust funds the entire amount in cash or U.S. Government Obligations sufficient
to pay at maturity or upon redemption all of the Debt Securities of such series
(other than any Debt Securities which shall have been destroyed, lost or stolen
and in lieu of or in substitution for which other Debt Securities shall have
been authenticated and delivered or Debt Securities for whose payment money (or
other form of payment if permitted by the terms of such Debt Securities) has
theretofore been held in trust and thereafter repaid to the Company, as provided
in Section 6.3) not theretofore paid, surrendered or delivered to the Trustee
for cancellation, including the principal, premium, if any, and interest due or
to become due to such date of maturity or redemption date, as the case may be,
and if in either case the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company and the Company shall deliver to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that in
the opinion of the signers
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all conditions precedent to the satisfaction and discharge of this Indenture
with respect to the Debt Securities of such series have been complied with (and,
in the event that such deposit shall be made more than one year prior to the
maturity of the Debt Securities of such series, such Opinion of Counsel shall
also state that such deposit will not result in an obligation of the Company,
the Trustee or the trust fund created by such deposit to register as an
investment company under the Investment Company Act of 1940, as amended) and a
certificate (upon which the Trustee may rely) of a firm of independent public
accounts of recognized national standing selected by the Board of Directors (who
may be the regular accountants employed by the Company) stating that the cash,
if any, and U.S. Government Obligations, if any, deposited as set forth above
are sufficient to pay at maturity or upon redemption all of the Debt Securities
of such series as set forth above, then, except with respect to the remaining
rights of conversion of any Debt Securities the terms of which provide for
conversion (which shall continue in full force and effect pursuant to the terms
set forth in Article XIII to the extent provided for in such terms) or to rights
of exchange or registration of transfer or of the Company's right of optional
redemption of any Debt Securities of such series, this Indenture shall cease to
be of further effect with respect to the Debt Securities of such series, and the
Trustee, on demand of and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to the Debt Securities of such series. Notwithstanding the
satisfaction and discharge of this Indenture with respect to the Debt Securities
of such series, the obligations of the Company and the Guarantors to the Trustee
under Section 11.2 shall survive, and if moneys or U.S. Government Obligations
shall have been irrevocably deposited with the Trustee or Paying Agent pursuant
to clause (b) of this Section, the obligations of the Trustee under Section 6.2
and the first paragraph of Section 6.3 shall survive.
In order to have money available on a payment date to pay the principal of,
premium, if any, or interest, if any, on the Debt Securities, the U.S.
Government Obligations shall be payable as to principal or interest on or before
such payment date in such amounts as will provide the necessary money. Such
U.S. Government Obligations shall not be callable at the issuer's option.
SECTION 6.2. Deposits for payment or redemption of Debt Securities to be
held in trust. Subject to the provisions hereinafter contained in this Article
VI, any moneys or U.S. Government Obligations (or other form of payments if
permitted by the terms of such Debt Security) which at any time shall be
deposited by the Company, or on its behalf with the Trustee or Paying Agent, for
the purpose of paying or redeeming any of the Debt Securities of any series
shall be held in trust and applied by the Trustee to the payment to the holders
of the particular Debt Securities for the payment or redemption of which such
moneys (or other form of payments if permitted by the terms of such Debt
Security) have been deposited, of all sums due and to become due thereon for
principal, premium, if any, and interest, upon presentation and surrender of
such Debt Securities at the office or agency of the Company maintained as
provided in this Indenture. Neither the Company nor the Trustee (except as
provided in Section 11.2) nor any Paying Agent shall be required to pay interest
on any moneys so deposited.
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SECTION 6.3. Repayment of moneys. Any moneys or U.S. Government
Obligations deposited with the Trustee or any Paying Agent remaining unclaimed
by the holders of Debt Securities for two years after the date upon which the
principal of or interest on such Debt Securities shall have become due and
payable, shall (unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law) be repaid to the Company by the
Trustee or Paying Agent and such holders shall (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law) thereafter be entitled to look to the Company only for payment thereof;
provided, however, that, before being required to make any such payment to the
Company, the Trustee or Paying Agent may, at the expense and written direction
of the Company, cause to be published once, in an Authorized Newspaper, a notice
that such moneys remain unclaimed and that, after the date set forth in said
notice, the balance of such moneys then unclaimed will be returned to the
Company.
Upon satisfaction and discharge of this Indenture, all moneys then held by
any Paying Agent other than the Trustee hereunder shall, upon demand of the
Company, be repaid to it and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
The Trustee or any Paying Agent shall deliver or pay to the Company from
time to time upon a request in writing by the Company any moneys or U.S.
Government Obligations (or the principal or interest on such U.S. Government
Obligations) held by it as provided in Section 6.1 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for the purpose for
which such money or U.S. Government Obligations were deposited or received.
ARTICLE VII
REMEDIES UPON DEFAULT
SECTION 7.1. Events of Default defined -- acceleration of maturity upon
default --waiver of default after acceleration. The following events are hereby
defined for all purposes of this Indenture (except where the term is otherwise
defined for specific purposes) as Events of Default with respect to Debt
Securities of a particular series, unless it is either inapplicable to a
particular series or is specifically deleted or modified as contemplated by
Section 2.2 for the Debt Securities of such series, in addition to any other
events as may be defined as Events of Default pursuant to Section 2.2 for the
Debt Securities of such series:
(a) Failure of the Company to pay or provide for payment of the
principal of or premium, if any, on any of the Debt Securities of such
series, when and as the same shall become due and payable, whether at
maturity thereof, by call for redemption, through any mandatory sinking
fund, by redemption at the option of the holder of any
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series of Debt Securities pursuant to the terms of such Debt Security, by
declaration of acceleration or otherwise; or
(b) Failure of the Company to pay or provide for payment of any
installment of interest on any of the Debt Securities of such series, when
and as the same shall become due and payable, which failure shall have
continued for a period of 30 days; or
(c) Failure of the Company or the Guarantors to perform or observe any
other of the covenants or agreements on the part of the Company or the
Guarantors in this Indenture or in the Debt Securities of such series
(other than a covenant or agreement which has expressly been included in
this Indenture solely for the benefit of Debt Securities of any series
other than that series or is expressly made inapplicable to the Debt
Securities of such series pursuant to Section 2.2) or in the Guarantees,
which failure shall have continued for a period of 90 days after written
notice by certified or registered mail given to the Company or the
Guarantors, as the case may be, by the Trustee hereunder or to the Company
and to the Trustee from the holders of not less than 25% of the aggregate
principal amount of Debt Securities then Outstanding of such series under
this Indenture specifying such Event of Default or failure and requesting
that it be remedied and stating that such notice is a notice of an event
which, if continued for 90 days after such written notice, will become an
Event of Default;
(d) The institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking relief under any Bankruptcy Law or
the consent by it to the institution of proceedings thereunder or consent
by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to
pay its debts generally as they become due;
(e) The entry of a decree or order by a court having jurisdiction for
relief in respect of the Company, or adjudging the Company a bankruptcy or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any Bankruptcy Law or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 180 consecutive days; or
(f) any Guarantee of any Guarantor that is a Significant Subsidiary
shall for any reason cease to be, or be asserted in writing by any such
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Guarantor thereof or the Company not to be, in full force and effect and
enforceable in accordance with its terms (other than by reason of the
termination of this Indenture or the release of any such Guarantee in
accordance with this Indenture), provided, however, that if the Company or
-------- -------
any Guarantor asserts in writing that any Guarantee is not in full force
and effect and enforceable in accordance with its terms, such assertion
shall not constitute an Event of Default for purposes of this subsection
(f) if (i) such written assertion is accompanied by an Opinion of Counsel
to the effect that, as a matter of law, the defect or defects rendering
such Guarantee unenforceable can be remedied within 10 days of the date of
such assertion, (ii) the Company or such Guarantor delivers an Officers'
Certificate to the effect that the Company or such Guarantor represents
that such defect or defects shall be so remedied within such 10-day period,
and (iii) such defect or defects are in fact so remedied within such 10-day
period: and provided, further, that notwithstanding anything to the
-------- -------
contrary in this subsection (f), any reduction in the maximum amount of any
such Guarantee in accordance with Article V shall not be an Event of
Default hereunder.
If one or more Events of Default shall occur and be continuing with respect
to Debt Securities then Outstanding of any series, then, and in each and every
such case, either the Trustee, by notice in writing to the Company, or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities then Outstanding of such series, by notice in writing to the Company
and to the Trustee, may declare the principal amount (or, if the Debt Securities
of such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of the Debt Securities of such
series) of all Debt Securities of such series and/or such other amount or
amounts as the Debt Securities or supplemental indenture with respect to such
series may provide, if not already due and payable, to be immediately due and
payable; and upon any such declaration all Debt Securities of such series shall
become and be immediately due and payable, anything in this Indenture or in any
of the Debt Securities of such series contained to the contrary notwithstanding.
This provision, however, is subject to the condition that if, at any time after
the principal of (and/or such other specified amount on) the Debt Securities of
such series shall so become due and payable, and before any judgement or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the Debt
Securities of such series and the principal of (and/or such other specified
amount) and premium, if any, on any and all Debt Securities of such series which
shall have become due otherwise than by acceleration, with interest on such
principal (and/or such other specified amount) and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, at the rate specified in the Debt Securities of
such series (or, if no such rate is specified, at the rate borne by the Debt
Securities of such series), to the date of such payment or deposit, and the
reasonable compensation and expenses of the Trustee, and any and all defaults
under this Indenture with respect to the Debt Securities of such series, other
than the nonpayment of principal of (and/or such other specified amount) or
premium, if any, and accrued interest on
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Debt Securities of such series which shall have become due by acceleration,
shall have been remedied, then and in every such case the Trustee shall, upon
written request or consent of the holders of a majority in aggregate principal
amount of the Debt Securities then Outstanding of such series delivered to the
Company and to the Trustee, waive such default and its consequences and rescind
or annul such declaration and its consequences, but no such waiver, rescission
or annulment shall extend to or affect any subsequent default, or impair any
right consequent thereon.
For all purposes under this Indenture, if the portion of the principal
amount as may be specified in the terms of any Original Issue Discount
Securities shall have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, payment of such portion of the
principal amount thereof, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 7.2. Covenant of Company to pay to Trustee whole amount due on
default in payment of Principal or interest - Trustee may recover judgment for
whole amount due -application of moneys received by the Trustee. In case the
Company or any Guarantor shall commit an Event of Default with respect to the
Debt Securities of any series described in Section 7.1(a) or (b) or any
Guarantee, then, upon demand of the Trustee, the Company and the Guarantors
shall pay to the Trustee, for the benefit of the holders of the Debt Securities
then Outstanding of such series, the whole amount which then shall have become
due on all such Debt Securities of such series for principal, premium, if any,
and interest, with interest on the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest, at the rate specified in the Debt
Securities of such series (or, if no such rate is specified, at the rate borne
by the Debt Securities of such series), and in addition thereto, such additional
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, liabilities, disbursements and
advances of the Trustee, any predecessor Trustee, their agents and counsel. In
case the Company or the Guarantors shall pay the same in accordance with the
provisions of this Section 7.2 and, prior to such payment neither the Trustee
nor the holders of the Debt Securities then Outstanding of such series shall
have taken any steps to begin enforcing their rights under this Indenture and so
long as no additional Event of Default with respect to the Debt Securities of
such series shall have occurred, from and after such payment, the Event of
Default giving rise to the demand by the Trustee pursuant to this Section 7.2
shall be deemed to be no longer continuing and shall be deemed to have thereupon
been remedied, cured or waived without further action upon the part of either
the Trustee or any of the holders of Debt Securities. In case the Company or
the Guarantors shall fail to pay the same forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute any
judicial proceedings at law or in equity for the collection of the sums so due
and unpaid and may prosecute such proceedings to judgment or final decree, and
may enforce the same against the Company or the Guarantors or any other obligor
upon the Debt Securities of such series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company or the Guarantors or any other obligor upon the Debt Securities of such
series, wherever
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situated. The right of the Trustee to recover such judgment shall not be
affected by the exercise of any other right, power or remedy for the enforcement
of the provisions of this Indenture.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantors or any other obligor
upon the Debt Securities or the property of the Company, the Guarantors or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of any Debt Securities shall then be due and payable as therein
expressed or by declaration of acceleration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered to file and prove
a claim for the whole amount of principal, premium, if any, and interest owing
and unpaid in respect of the Debt Securities of any series for which it serves
as Trustee 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, any predecessor Trustee, their agents and counsel) and of the holders
of Debt Securities of such series allowed in such judicial proceeding, and to
receive payment of or on account of such claims and to distribute the same after
the deduction of its charges and expenses; and any receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any judicial proceeding
is hereby irrevocably authorized and instructed by each of the holders of Debt
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
the holders of Debt Securities of such series, to pay to the Trustee any amount
due it or any predecessor Trustee, for compensation and expenses, including
counsel fees incurred up to the date of such distribution. Nothing contained in
this Indenture shall be deemed to give to the Trustee any right to accept or
consent to any plan of reorganization, arrangement, adjustment or composition
affecting the holders of Debt Securities or the rights of any holder of Debt
Securities, or to authorize the Trustee to vote in respect of the claim of any
holder of Debt Securities in any such proceeding; provided, however, that the
Trustee may, on behalf of the holders of Debt Securities, vote for the election
of a trustee in bankruptcy or similar official and may be a member of any
creditors' committee.
Any moneys or property received by the Trustee under this Section 7.2 shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys or property on account of
principal, premium, if any, or interest, upon presentation of the several Debt
Securities of the series in respect of which such moneys were received, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
First: To the payment of costs and expenses of collections, and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and all advances made and expenses and liabilities incurred by the Trustee,
except as a result of its negligence or bad faith and all other amounts
owing to the Trustee or any predecessor Trustee pursuant to Section 11.2
hereof;
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Second: In case the principal of the Outstanding Debt Securities in
respect of which such moneys were received shall not have become due and be
unpaid, to the payment of interest on such Debt Securities, in the order of
the maturity of the installments of such interest, with interest (so far as
may be lawful) upon the overdue installments of interest at the rate
specified in such Debt Securities (or, if no such rate is specified, at the
rate borne by the Debt Securities of such series), such payments to be made
ratably to the persons entitled thereto;
Third: In case the principal of the Outstanding Debt Securities in
respect of which such moneys were received and/or such other amount or
amounts as the Debt Securities or supplemental indenture with respect to
such series shall provide, shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon
such Debt Securities for principal (and/or such other specified amount),
premium, if any, and interest, with interest on the overdue principal
(and/or such other specified amount), premium, if any, and (so far as may
be lawful) upon overdue installments of interest, at the rate specified in
such Debt Securities (or, if no such rate is specified, at the rate borne
by the Debt Securities of such series), and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon such
Debt Securities, then to the payment of such principal (and/or such other
specified amount), premium, if any, and interest, with interest on the
overdue principal (and/or such other specified amount), premium, if any,
and (so far as may be lawful) upon overdue installments of interest, at the
rate specified in such Debt Securities (or, if no such rate is specified,
at the rate borne by the Debt Securities of such series), without
preference or priority of principal (and/or such other specified amount)
and premium, if any, over interest, or of interest over principal (and/or
specified amount) and premium, if any, or of any installment of interest
over any other installment of interest, or of any such Debt Security over
any other such Debt Security, ratably to the aggregate of such principal
(and/or such other specified amount), premium, if any, and accrued and
unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 7.3. Trustee may enforce rights of action without possession of
Debt Securities. All rights of action under this Indenture or any of the Debt
Securities Outstanding of any series hereunder enforceable by the Trustee may be
enforced by the Trustee without the possession of any of the Debt Securities or
the production thereof at the trial or other proceedings relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought for the
ratable benefit of the holders of the Debt Securities with respect to which the
rights are being exercised, subject to the provisions of this Indenture.
SECTION 7.4. Delays or omissions not to impair any rights or powers
accruing upon default. No delay or omission of the Trustee or of the holders of
Debt Securities to exercise any rights or powers accruing upon any default which
shall not have been remedied shall
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impair any such right or power, or shall be construed to be a waiver of any such
default or acquiescence therein; and every power and remedy given by this
Article VII to the Trustee and the holders of the Debt Securities of any series
may be exercised from time to time and as often as may be deemed expedient by
the Trustee or by the holders of the Debt Securities of such series.
SECTION 7.5. In Event of Default Trustee may protect and enforce its
rights by appropriate proceedings - holders of majority in aggregate Principal
amount of Debt Securities of a series may waive default. If any one or more
Events of Default shall happen and be continuing, the Trustee may, in its
discretion, proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee, being advised
by its counsel, shall deem most effectual to protect and enforce any of said
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific performance of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Provided the Debt Securities of any series shall not then be due and
payable by reason of a declaration pursuant to Section 7.1 hereof, the holders
of a majority in aggregate principal amount of the Debt Securities of such
series then Outstanding may on behalf of the holders of all of the Debt
Securities of such series waive by written notice any past default hereunder and
its consequences, except a default in the payment of interest on or principal
and premium, if any, of any of the Debt Securities of such series. In the case
of any such waiver, the Company, the Guarantors, the Trustee and the holders of
the Debt Securities of such series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.6. Holders of majority in aggregate principal amount of Debt
Securities of any series may direct exercise of remedies. The holders of a
majority in aggregate principal amount of the Debt Securities then Outstanding
of any series shall have the right, by an instrument in writing executed and
delivered to the Trustee, to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee, or of exercising any power
or trust conferred upon the Trustee under this Indenture, with respect to the
Debt Securities of such series; provided, however, that subject to the
provisions of Section 11.1 of this Indenture, the Trustee shall have the right
to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action or proceedings so directed may not lawfully
be taken or if the Trustee in good faith shall, by Responsible Officers,
determine that the action or proceedings so directed would involve the Trustee
in personal liability, or would be unduly prejudicial to the holders of the Debt
Securities of such series not joining in such direction, it being understood
that the Trustee (subject to Section 11.1) shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
holders, and the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 7.7. Limitation on suits by holders of Debt Securities. No holder
of any Debt Security of any series shall have the right to institute any suit,
action or proceeding, in equity or at law for the execution of any trust or
power hereof, or for the enforcement of any other remedy under or upon this
Indenture or the Debt Securities of such series, unless the holders of a
majority in aggregate principal amount of the Debt Securities then Outstanding
of such series shall have made written request upon the Trustee and shall have
afforded to it a reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such suit, action or proceeding in its own
name, as Trustee hereunder, and shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee shall have refused or neglected to comply with such
request for 60 days after its receipt of such request and no direction
inconsistent with such request shall have been given to the Trustee pursuant to
Section 7.6; it being understood and intended that no one or more holders of
Debt Securities of any series shall have any right under this Indenture or under
the Debt Securities, by his or their action, to enforce any right hereunder
except in the manner herein provided, and that all proceedings hereunder, at law
or in equity, shall be instituted, had and maintained in the manner herein
provided and for the ratable benefit of all holders of the Debt Securities of
such series. Notwithstanding any provision of this Indenture to the contrary,
the right, which is absolute and unconditional, of any holder of Debt Securities
to receive the payment of the principal of, premium, if any, and interest on his
Debt Securities at and after the respective due dates (including maturity by
call for redemption, through any sinking fund, declaration unless annulled
pursuant to Section 7.1 hereof, or otherwise), of such principal, premium, if
any, or interest, or the right, which is also absolute and unconditional, of any
holder of Debt Securities to require conversion of his Debt Securities pursuant
to Article XIII hereof if the terms of such Debt Securities provide for
convertibility pursuant to Section 2.2, or the right to institute suit for the
enforcement of any such payment at or after such due dates or of such right to
convert, shall not be impaired or affected without the consent of such holder,
and the obligation of the Company, which is also absolute and unconditional, to
pay the principal of, premium, if any, and interest on each of the Debt
Securities to the respective holders thereof at the times and places in the Debt
Securities expressed shall not be impaired or affected.
Notwithstanding anything to the contrary contained in this Section 7.7, the
parties to this Indenture and the holders of Debt Securities agree as follows:
Any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and 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;
provided, however, that the provisions of this paragraph shall not apply to any
suit instituted, directly or through an agent or agents, by the Trustee, to any
suit instituted by any holder of Debt Securities of any series, or group of
holders of Debt Securities of any series, holding in the aggregate more than 10%
in aggregate principal amount of the Debt Securities then Outstanding of such
series or to any suit instituted by any holder of Debt Securities of any
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series for the enforcement of the payment of the principal of, premium, if any,
or interest on, any Debt Security of such series at or after the respective due
dates of such principal, premium, if any, or interest expressed in his Debt
Security of such series.
SECTION 7.8. No Debt Securities owned or held by, for the account of or
for the benefit of the Company to be deemed Outstanding for purpose of payment
or distribution. No Debt Securities owned or held by, for the account of or for
the benefit of the Company or any Affiliate (other than Debt Securities pledged
in good faith which would be deemed Outstanding under the provisions of Section
3.3) shall be deemed Outstanding for the purpose of any payment or distribution
provided for in this Article VII.
SECTION 7.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings. If the Trustee shall have
proceeded to enforce any right under this Indenture with respect to the Debt
Securities of any series, and such proceedings shall have been discontinued or
abandoned because of waiver, or for any other reason, or shall have been
determined adversely to the Trustee, then, and in any such case, the Company,
the Guarantors, the Trustee and the holders of Debt Securities of such series
shall each be restored to their former positions and rights hereunder, and all
rights, remedies and powers of the Trustee shall continue as though no such
proceeding had been taken.
ARTICLE VII
EVIDENCE OF ACTION BY HOLDERS OF DEBT SECURITIES
SECTION 8.1. Evidence of action by holders of Debt Securities. Any
demand, request, consent, proxy or other instrument which this Indenture may
require or permit to be signed and executed by the holders of Debt Securities of
any series may be in any number of concurrent instruments of similar tenor, and
may be signed or executed by such holders of Debt Securities in person or by an
attorney duly authorized in writing. Proof of the execution of any such demand,
request, consent, proxy or other instrument, or of a writing appointing any such
attorney, shall be sufficient for any purpose of this Indenture if made in the
following manner: the fact and date of the execution by any person of such
demand, request, consent, proxy or other instrument or writing may be proved by
the certificate of any notary public, or other officer authorized to take
acknowledgments of deeds to be recorded in any state or country, that the person
signing such request or other instrument or writing acknowledged to him the
execution thereof, or by an affidavit of a witness of such execution. Where
such execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, or by a
trustee or other fiduciary, such certificate or affidavit shall also constitute
sufficient proof of his authority. The Trustee may nevertheless in its
discretion accept such other proof or require further proof of any matter
referred to in this Section 8.1 as it shall deem reasonable. The ownership of
Debt Securities shall be proved by the registry books or by a certificate of the
registrar thereof.
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The Trustee shall not be bound to recognize any person as a holder of Debt
Securities of any series unless and until his title to the Debt Securities of
such series held by him is proved in the manner in this Article VIII provided.
Any demand, request, discretion, waiver, consent, vote or other action of
the holder of any series of Debt Securities shall be conclusive and shall bind
all future holders of the same Debt Security and of any series of Debt
Securities issued in exchange or substitution therefor irrespective of whether
or not any notation in regard thereto is made upon such Debt Security. Any such
holder, however, may revoke the consent as to his Debt Security or portion
thereof. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective. An amendment, supplement, waiver or other action
shall become effective on receipt by the Trustee of written consents from the
holders of Debt Securities of the requisite percentage in aggregate principal
amount of the Outstanding Debt Securities of the relevant series. After an
amendment, supplement, waiver or other action becomes effective, it shall bind
every holder of Debt Securities of each series of Debt Securities so affected.
The Company or the Trustee, as applicable, may set a date for the purpose
of determining the holders of Debt Securities entitled to consent, vote or take
any other action referred to in this Section 8.1, which date shall be not less
than 10 days nor more than 60 days prior to the taking of the consent, vote or
other action.
ARTICLE IX
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 9.1. Immunity of incorporators, stockholders, officers, directors
and employees. No recourse shall be had for the payment of the principal of,
premium, if any, or interest on any series of Debt Securities or for any claim
based thereon or otherwise in any manner in respect thereof, or in respect of
this Indenture, to or against any subsidiary, incorporator, stockholder,
officer, director or employee, as such, past, present or future, of the Company
or any subsidiary, incorporator, stockholder, officer, director or employee, as
such, past, present or future, of any predecessor or successor corporation,
partnership or limited liability company either directly or through the Company
or such predecessor or successor corporation, partnership or limited liability
company, whether by virtue of any constitutional provision or statute or rule of
law, or by the enforcement of any assessment or penalty, or in any other manner,
all such liability being expressly waived and released by the acceptance of any
series of Debt Securities and as part of the consideration for the issue
thereof.
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ARTICLE X
MERGER, CONSOLIDATION, SALE OR LEASE
SECTION 10.1. Documents required to be filed with the Trustee upon
consolidation, merger, sale, transfer or lease - execution of supplemental
indentures - acts of successor corporation. Nothing in this Indenture or in the
Debt Securities shall prevent any consolidation or merger of the Company or the
Guarantors with or into any other corporation, partnership or limited liability
company, or any consolidation or merger of any other corporation, partnership or
limited liability company with or into the Company or any Guarantor, or any
sale, transfer or lease of all or substantially all of the property and assets
of the Company or any Guarantor to any other corporation, partnership or limited
liability company lawfully entitled to acquire the same; provided, however, and
the Company and the Guarantors hereby covenant and agree, that any consolidation
or merger of the Company or the Guarantors with or into any other corporation,
partnership or limited liability company or the sale, transfer or lease of all
or substantially all of the property and assets of the Company and its
subsidiaries on a consolidated basis shall be upon the condition that (a) the
due and punctual payment of the principal of, premium, if any, and interest on
all the Debt Securities according to their tenor, and the due and punctual
performance and observance of all the terms, covenants and conditions of this
Indenture to be kept or performed by the Company and the Guarantors shall, by an
indenture supplemental hereto complying with the provisions of Section 12.1,
executed and delivered to the Trustee, be expressly assumed by the corporation,
partnership or limited liability company (other than the Company or the
Guarantors) formed by or resulting from any such consolidation or merger, or
which shall have received the transfer or lease of all or substantially all of
the property and assets of the Company and its subsidiaries on a consolidated
basis, just as fully and effectually as if such successor corporation,
partnership or limited liability company had been an original party hereto; and
(b) the Company, the Guarantor or such successor corporation, partnership or
limited liability company, as the case may be, shall not, immediately after such
consolidation, merger, sale, transfer or lease be in default in the performance
of any such covenant or condition. Thereafter, unless otherwise specified
pursuant to Section 2.2 for the Debt Securities of any series, all obligations
of the predecessor corporation, partnership or limited liability company under
the Debt Securities of such series shall terminate. In the event of any such
sale, transfer or lease, the predecessor Company or the Guarantor may be
dissolved, wound up and liquidated at any time thereafter.
Every such successor corporation, partnership or limited liability company,
upon executing an indenture supplemental hereto as provided in this Section 10.1
in form satisfactory to the Trustee, shall succeed to and be substituted for the
Company and the Guarantors, as the case may be, with the same effect as if it
had been named herein as the Company and the Guarantors; and any order,
certificate or resolution of the Board or officers of the Company or the a
Guarantor provided for in this Indenture may be made by like officials of such
successor corporation, partnership or limited liability company. Such successor
corporation, partnership or limited liability company may thereupon cause to be
signed, either in its own name or in the name of the Company or the Guarantors,
with such
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suitable reference, if any, to such consolidation, merger, sale, transfer
or lease as may be required by the Trustee, any or all of the Debt Securities or
Guarantees which shall not theretofore have been signed by the Company or the
Guarantors and authenticated by the Trustee or any Authenticating Agent; and
upon the written order of such successor corporation, partnership or limited
liability company in lieu of the Company or any Guarantor, as the case may be,
signed by the President or any Vice President (regardless of Vice Presidential
designation) and the Chief Financial Officer, Treasurer or any Assistant
Treasurer of such successor corporation, partnership or limited liability
company, and subject to all the terms, conditions and restrictions herein
prescribed with respect to the authentication and delivery of the Debt
Securities and Guarantees, the Trustee or any Authenticating Agent shall
authenticate and deliver any and all Debt Securities and Guarantees which shall
have been previously signed by the proper officers of the Company and the
Guarantors and delivered to the Trustee or any Authenticating Agent for
authentication and any of such Debt Securities and Guarantees which such
successor corporation, partnership or limited liability company shall
thereafter, in accordance with the provisions of this Indenture, cause to be
signed and delivered to the Trustee or any Authenticating Agent for such
purpose. All Debt Securities of any series so authenticated and delivered shall
in all respects have the same rank as the Debt Securities of such series
theretofore or thereafter authenticated and delivered in accordance with the
terms of this Indenture.
Notwithstanding the foregoing, this Section 10.1 shall not apply in the
event, and to the extent, that any such consolidation, merger, sale, transfer or
lease described above is expressly permitted pursuant to the terms of any
supplemental indenture governing any series of Debt Securities, provided that
the Company or the applicable Guarantor (as the case may be) complies with all
conditions set forth in such supplemental indenture for any such consolidation,
merger, sale, transfer or lease.
SECTION 10.2. Trustee may rely upon Opinion of Counsel. The Trustee may
receive and shall, subject to the provisions of Section 11.1 of this Indenture,
be fully protected in relying upon an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any supplemental indenture executed under
the foregoing Section 10.1 complies with the foregoing conditions and provisions
of this Article X.
ARTICLE XI
CONCERNING THE TRUSTEE
SECTION 11.1. Acceptance of Trust - responsibilities of Trustee. (a) The
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this Indenture
or in the Trust Indenture Act of 1939, and no implied covenants or conditions
shall be read into this Indenture against the Trustee. In case an Event of
Default with respect to the Debt Securities of a particular series has occurred
(but only during the continuance thereof), the Trustee shall exercise with
respect to the Debt
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Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee pursuant to any provision of this Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) prior to the occurrence of an Event of Default with respect to the
Debt Securities of any series hereunder and after the curing or waiving of
all Events of Default with respect to the Debt Securities of such series
which may have occurred, the Trustee shall not be liable with respect to
the Debt Securities of such series except for the performance of such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, but the duties and obligations of the Trustee with respect to the
Debt Securities of such series, prior to the occurrence of an Event of
Default with respect to the Debt Securities of such series and after the
curing or waiving of all Events of Default with respect to the Debt
Securities of such series which may have occurred, shall be determined
solely by the express provisions of this Indenture;
(ii) Subject to the limitations contained in subsection (a) of this
Section 11.1, prior to the occurrence of an Event of Default with respect
to the Debt Securities of any series hereunder and after the curing or
waiving of all Events of Default with respect to the Debt Securities of
such series which may have occurred, and in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed herein, upon
certificates or opinions conforming to the requirements of this Indenture;
(iii) the Trustee shall not be personally liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Trustee unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iv) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a majority in
aggregate principal amount of the Debt Securities then Outstanding of any
series relating to the time, method and place of conducting any proceeding
for any remedy available
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to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Debt Securities of such
series.
(c) Subject to the limitations contained in subsections (a) and (b) of
this Section 11.1, the recitals contained herein and in the Debt Securities
(except in the Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture and to perform its obligations hereunder.
(d) Subject to the limitations contained in subsections (a) and (b) of
this Section 11.1:
(i) the Trustee may rely and shall be protected in acting or
refraining from action upon any resolution, certificate, opinion, notice,
consent, request, order, appraisal, report, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or Opinion of Counsel;
(iii) whenever in the administration of the trusts of this Indenture,
prior to an Event of Default hereunder and after the curing or waiving of
all Events of Default which may have occurred, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate shall be full
warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof;
(iv) the Trustee shall be under no obligation to exercise any of the
trusts or powers hereof at the request, order or direction of any of the
holders of Debt Securities, pursuant to the provisions of this Indenture,
unless such holders of Debt Securities shall have offered to the Trustee
reasonable indemnity against all the costs, expenses and liabilities which
might be incurred therein;
(v) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within
the discretion or power conferred upon it by this Indenture;
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(vi) prior to the occurrence of an Event of Default with respect to
the Debt Securities of any series hereunder and after the curing or waiving
of all Events of Default with respect to the Debt Securities of such series
which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, opinion, notice, consent, request, order, appraisal, report,
bond or other document or instrument concerning such series, unless
requested in writing to do so by the holders of not less than a majority in
aggregate principal amount of the Debt Securities then Outstanding of such
series; provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee
(subject to the limitations contained in subsections (a) and (b) of this
Section 11.1), not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and provided, further, that nothing in this subdivision (d)(vi)
shall require the Trustee to give the holders of Debt Securities any notice
other than that required by Section 11.3 hereof. The reasonable expense of
every such investigation shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
(vii) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(viii) except for (i) a default under Sections 7.1(a) or (b) hereof, or
(ii) any other event which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not
be deemed to have notice of any default or Event of Default unless
specifically notified in writing of such event by the Company or the
holders of not less than 25% aggregate principal amount of the Debt
Securities then outstanding; as used herein, the term "actual knowledge"
means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto;
(ix) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(x) none of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that
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repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 11.2. Trustee to be entitled to compensation - Trustee not to be
accountable for application of proceeds - moneys held by Trustee to be trust
funds. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for services rendered by it in the execution of the
trusts hereby created, and shall also be entitled to payment of reasonable
expenses and disbursements actually made or incurred hereunder, including the
reasonable fees and expenses of counsel, accountants and of all persons not
regularly in its employ, and all taxes which may have been assessed against the
Trustee as such or any funds on deposit with the Trustee. The Company also
agrees to indemnify each of the Trustee and any predecessor Trustee for and hold
it harmless against loss, liability or expense incurred arising out of or in
connection with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in the premises and the costs and expenses of
enforcing this Section 11.2, except to the extent that such loss, liability or
expense is incurred due to the negligence or willful misconduct of the Trustee
or predecessor Trustee. If any property other than cash shall at any time be
subject to a lien in favor of the holders of Debt Securities, the Trustee, if
and to the extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon. The obligations of the Company under this Section 11.2 to compensate
the Trustee and to indemnify, pay or reimburse the Trustee or any predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the resignation or removal of the
Trustee, the termination of this Indenture, and the satisfaction and discharge
or any other termination pursuant to any Bankruptcy Law hereof. Such additional
indebtedness shall be secured by a lien prior to that of the Debt Securities of
all series with respect to which the Trustee acts as Trustee upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Debt Securities.
The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities authenticated and delivered hereunder or of the
proceeds of such Debt Securities, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this Indenture, or
for the use or application of any moneys received by any paying agent.
All moneys received by the Trustee in trust under or pursuant to any
provision of this Indenture shall constitute trust funds for the purposes for
which they were paid or were held, but need not be segregated in any manner from
any other moneys and may be deposited by the Trustee, under such conditions as
may be prescribed by law, in its general banking department, and the Trustee
shall not be liable for any interest thereon, except as otherwise agreed with
the Company.
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The parties hereto, and the holders of Debt Securities by their acceptance
of their Debt Securities, hereby agree, that when the Trustee incurs expenses
and renders services after an Event of Default occurs, such expenses and the
compensation for such services are intended by the holders of the Debt
Securities and Company to constitute expenses of administration under any
Bankruptcy Law.
SECTION 11.3. Trustee to give holders of Debt Securities notice of
default. The Trustee shall give to the holders of Debt Securities of any series
notice of the happening of all defaults with respect to the Debt Securities of
such series known to it, within 90 days after the occurrence thereof unless such
defaults shall have been cured before the giving of such notice; provided,
however, that, except in the case of a default resulting from the failure to
make any payment of principal of, premium, if any, or interest on the Debt
Securities of any series, or in the payment of any mandatory sinking fund
installment with respect to the Debt Securities of such series, the Trustee may
withhold the giving of such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the holders of Debt Securities of such series. For
the purpose of this Section 11.3, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default. Such
notice shall be given to the holders of Debt Securities of such series in the
manner and to the extent provided in subsection (c) of Section 11.10.
SECTION 11.4. Trustee acquiring conflicting interest must eliminate it or
resign. Reference is made to Section 310(b) of the Trust Indenture Act of 1939,
as amended. There shall be excluded under Section 310(b)(1) thereof this
Indenture with respect to the Debt Securities of any series other than the Debt
Securities of the first series.
SECTION 11.5. Eligibility of Trustee. There shall at all times be a
corporate Trustee under this Indenture which shall be a bank or trust company
organized and doing business under the laws of the United States or of any State
or the District of Columbia and having a combined capital and surplus of not
less than $50,000,000 which is authorized under the laws of its jurisdiction of
incorporation to exercise corporate trust powers and is subject to supervision
or examination by Federal, State or District of Columbia authority and which has
an office or agency in New York, New York. If the Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, the combined capital of the
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If the Trustee shall at any
time cease to meet the foregoing standards of eligibility, then such Trustee
shall resign immediately in the manner and with the effect specified in Section
11.6.
SECTION 11.6. Resignation or removal of Trustee. (a) Subject to the
limitations contained in subsection (d) of this Section 11.6, the Trustee may
resign and be discharged from the trust hereby created with respect to the Debt
Securities of one or more series by giving notice thereof to the Company and by
giving notice thereof to the holders of Debt Securities of such series, in the
manner and to the extent provided in subsection (c) of Section
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11.10. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees (it being understood that any such
successor trustee may be appointed with respect to the Debt Securities of one or
more or all of such series with respect to which the resigning trustee has
resigned and that at any time there shall be only one trustee with respect to
the Debt Securities of any particular series) by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any holder of Debt
Securities of such series who has been a bona fide holder of a Debt Security or
Debt Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
11.4 with respect to the Debt Securities of any series after written
request therefor by the Company or by any holder of Debt Securities of such
series who has been a bona fide holder of a Debt Security or Debt
Securities of such series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 11.5 with respect to the Debt Securities of any
series and shall fail to resign after written request therefor by the
Company or by any such holder of Debt Securities; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs
then, in any such case, the Company may remove the Trustee with respect to all
Debt Securities of such series and appoint a duly qualified successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors of
the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee so appointed, or, subject to the
provisions of Section 7.7, any holder of Debt Securities who has been a bona
fide holder of a Debt Security or Debt Securities of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Debt Securities of such series and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a duly qualified successor
trustee with respect to the Debt Securities of such series.
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(c) The holders of a majority in aggregate principal amount of the Debt
Securities then Outstanding of any series may at any time remove the Trustee and
appoint a duly qualified successor trustee with respect to such series by
delivery to the Trustee so removed, to the successor trustee and to the Company
of the evidence provided for in Section 8.1 of the action in that regard taken
by holders of Debt Securities.
(d) Any resignation or removal of the Trustee and any appointment of a
duly qualified successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 11.7.
SECTION 11.7. Acceptance by successor Trustee.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Debt Securities, every duly qualified successor trustee so
appointed under any of the methods herein provided shall execute, acknowledge
and deliver to its predecessor trustee and to the Company an instrument in
writing accepting such appointment hereunder and thereupon such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with the rights, powers, trusts, duties and obligations of its predecessor in
the trust hereunder with like effect as if originally named as Trustee herein.
The predecessor trustee shall, nevertheless, at the written request of the
successor trustee, pay over to the successor trustee all moneys at the time held
by it herein; and the Company and the predecessor trustee upon payment or
provision therefor of any amounts then due the predecessor trustee pursuant to
the provisions of Section 11.2, shall execute and deliver such instruments and
do such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers, trusts,
duties and obligations. The Company shall promptly give notice of the
appointment of such successor trustee to the holders of Debt Securities in the
manner and to the extent provided in subsection (c) of Section 11.10.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the predecessor trustee and each successor trustee with respect to the Debt
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which
(i) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the predecessor trustee with respect to the Debt Securities
of such series to which the appointment of such successor trustee relates, (ii)
if the predecessor trustee is not retiring with respect to all Debt Securities
of such series, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Debt Securities of such series as to
which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any
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other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the predecessor trustee shall become
effective to the extent provided therein and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Debt Securities of such series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
predecessor trustee upon payment of its charges shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
predecessor trustee hereunder with respect to the Debt Securities of such series
to which the appointment of such successor trustee relates. Upon request of any
such successor trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in this subsection (b) of this
Section.
SECTION 11.8. Successor to Trustee by merger or consolidation, etc. Any
corporation or national banking association into which the Trustee may be
merged, or with which it may be consolidated, or to which the Trustee transfers
all or substantially all of its corporate trust assets, or any corporation or
national banking association resulting from any merger or consolidation or
conversion to which the Trustee shall be a party, shall be the successor trustee
under this Indenture without the execution or filing of any instruments or any
further act on the part of any of the parties hereto.
In case at the time such successor trustee shall succeed to the trusts
created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor trustee may adopt the
certificate of authentication of its predecessor trustee, and deliver such Debt
Securities so authenticated; and in case at that time any of the Debt Securities
shall not have been authenticated, any successor trustee may authenticate such
Debt Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor trustee or authenticate Debt Securities in the name of any
predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 11.9. Limitations on right of Trustee as a creditor to obtain
payment of certain claims. Reference is made to Section 311 of the Trust
Indenture Act of 1939, as amended, for purposes of which the following terms
shall have the following meanings:
(i) the term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(ii) the term "self-liquidating paper" shall mean any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing,
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manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares, or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, ▇▇▇▇ of exchange, acceptance or obligation.
SECTION 11.10. Trustee to make annual report to holders of Debt
Securities -Trustee to make other reports to holders of Debt Securities -
holders of Debt Securities to whom reports to be transmitted. (a) The Trustee
shall, so long as any Debt Securities are Outstanding of any series with respect
to which it acts as Trustee, transmit to the holders of Debt Securities of such
series, any report which is required to be transmitted to the holders of Debt
Securities of such series pursuant to Section 313(a) of the Trust Indenture Act
of 1939, as amended.
(b) The Trustee shall, so long as any Debt Securities of any series with
respect to which it acts as Trustee shall be Outstanding, also transmit to the
holders of Debt Securities of such series, as hereinafter provided, within the
times hereinafter specified, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state the circumstances
surrounding the making thereof) made by the Trustee, as such, since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section 11.10 (or if no such report has been so transmitted, since the date of
the execution of this Indenture), for the reimbursement of which it claims or
may claim a lien or charge prior to that of the Debt Securities of such series,
on property or funds held or collected by the Trustee, as such, and which it has
not previously reported pursuant to this subsection (b), if such advances
remaining unpaid at any time aggregate more than 10% of the principal amount of
the Debt Securities of such series then Outstanding, such report to be so
transmitted within 90 days after such time.
(c) All reports required by this Section 11.10, and all other reports or
notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section 11.10, shall be
transmitted by mail: (i) to all registered holders of Debt Securities of such
series, as the names and addresses of such holders appear upon the Debt Security
register; (ii) to such holders of Debt Securities of such series as have, within
the two years preceding such transmission, filed their names and addresses with
the Trustee for that purpose; and (iii) except in the case of reports pursuant
to subsection (b) of this Section 11.10, to all holders of Debt Securities of
such series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 4.6(d).
(d) The Trustee shall, at the time of the transmission to the holders of
Debt Securities of any report or notice pursuant to this Section 11.10, file a
copy thereof with the Securities and Exchange commission. The Company will
notify the Trustee if and when the Debt
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Securities of any series become listed on any stock exchange and the Trustee
will thereafter file a copy of any such report or notice with such stock
exchange.
SECTION 11.11. Preservation of information by Trustee - Trustee to give
certain information to holders of Debt Securities upon application. The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information furnished it pursuant to Section 4.6(d) hereof or received by it as
Debt Security registrar hereunder. The Trustee may destroy such information
upon receipt of new information updating information previously furnished.
Within five Business Days after receipt by the Trustee or its designee of a
written application by any three or more holders of Debt Securities stating that
the applicants desire to communicate with other holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities, and
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, and by reasonable proof that each such applicant
has owned a Debt Security or Debt Securities for a period of at least six months
preceding such application, the Trustee or its designee shall, at its election,
either (a) afford to such applicants access to all information so furnished to
or received by the Trustee or its designee and not destroyed pursuant to the
provisions of this Section 11.11, or (b) inform such applicants as to the
approximate number of holders of Debt Securities according to the most recent
information so furnished to or received by the Trustee or its designee, and as
to the approximate cost of mailing to the holders of Debt Securities the form of
proxy or other communication, if any, specified in such application. If the
Trustee or its designee shall elect not to afford to such applicants access to
such information, the Trustee or its designee shall, upon the written request of
such applicants, mail to all holders of Debt Securities whose names and
addresses are contained in the then current information filed with the Trustee
or its designee as aforesaid copies of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a tender to
the Trustee or its designee of the material to be mailed and the payment, or
provision for the payment, of the reasonable expenses of such mailing, unless
within five Business Days after such tender, the Trustee or its designee shall
mail to such applicants, and file with the Securities and Exchange Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee or its designee, such mailing would
be contrary to the best interests of the holders of Debt Securities or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Securities and Exchange Commission, after granting
opportunity for a hearing upon the objections specified in said written
statement and on notice to the Trustee or its designee, shall enter an order
refusing to sustain any of such objections, or, if, after the entry of an order
sustaining one or more of such objections, the Securities and Exchange
Commission shall find, after notice and opportunity for a hearing, that all
objections sustained have been met and shall enter an order so declaring, the
Trustee or its designee shall mail copies of such material to all such holders
of Debt Securities with reasonable promptness after such determination and the
renewal of the aforesaid tender; otherwise the Trustee or its designee shall be
relieved of any obligation or duty to such applicants respecting their
application.
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Neither the Company, the Trustee or its designee nor any person acting as
Debt Security registrar or paying agent shall be liable or accountable to the
Company or to any holder of Debt Securities by reason of the disclosure of any
such information as to the names and addresses of holders of Debt Securities in
accordance with the provisions of this Section 11.11, regardless of the source
from which such information was derived, nor by reason of the mailing of any
material pursuant to a request made under this Section 11.11.
SECTION 11.12. Trustee may hold Debt Securities and otherwise deal with
Company. The Trustee, the Debt Security registrar, any paying agent or any
other agent of the Company in its individual or any other capacity may buy, own,
hold and sell any of the Debt Securities or any other evidences of indebtedness
or other securities, whether heretofore or hereafter created or issued, of the
Company or any subsidiary or Affiliate with the same rights it would have if it
were not Trustee, Debt Security registrar, paying agent or such other agent; and
subject to the provisions of this Article XI, the Trustee may engage or be
interested in any financial or other transaction with the Company or any
subsidiary or Affiliate, including, without limitation, secured and unsecured
loans to the Company or any subsidiary or Affiliate; and may maintain any and
all other general banking and business relations with the Company and any
subsidiary or Affiliate with like effect and in the same manner and to the same
extent as if the Trustee were not a party to this Indenture; and no implied
covenant shall be read into this Indenture against the Trustee in respect of any
such matters.
SECTION 11.13. Trustee may comply with any rule, regulation or order of
the Securities and Exchange Commission. The Trustee may comply in good faith
with any rule, regulation or order of the Securities and Exchange Commission
made pursuant to the terms and provisions of the Trust Indenture Act of 1939 and
shall be fully protected in so doing notwithstanding that such rule, regulation
or order may thereafter be amended or rescinded or determined by judicial or
other authority to be invalid for any reason, but nothing herein contained shall
require the Trustee to take any action or omit to take any action in accordance
with such rule, regulation or order, except as is in this Indenture otherwise
required.
SECTION 11.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Debt Securities which shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, registration
of transfer or partial redemption or partial conversion thereof, and if the
Trustee is required to appoint one or more Authenticating Agents with respect to
any series of Debt Securities, to authenticate Debt Securities of such series
and to take such other actions as are specified in Sections 2.4, 2.8, 2.11, 5.2
and 13.3, and Debt Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent (except in respect of original issue and
Section 2.9). Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing
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business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 11.14, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 11.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 11.14, without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
or resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 11.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall provide
notice to the holders of the Debt Securities of the series as to which the
Authenticating Agent will serve as provided in Section 3.9. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 11.14.
The Trustee agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 11.2.
If an appointment with respect to one or more series is made pursuant to
this Section 11.14, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
By: __________________________________
As Authenticating Agent
By: __________________________________
Authorized Officer
If all of the Debt Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Debt Securities upon original issuance located where the Company wishes to have
Debt Securities of such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need not
comply with Section 3.8 and need not be accompanied by an Opinion of Counsel),
shall appoint in accordance with this Section 11.14 an Authenticating Agent
having an office in a place designated by the Company with respect to such
series of Debt Securities.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Company and Trustee may enter into supplemental indenture
for special purposes. Without the consent of any of the holders of Debt
Securities, the Company, when authorized by resolution of its Board of
Directors, and, upon receipt of an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture, is
duly authorized by all necessary corporate action, constitutes the legal, valid
and binding obligation of the Company and is in compliance with applicable law,
the Trustee from time to time and at any time, subject to the conditions and
restrictions in this Indenture contained, may enter into an indenture or
indentures supplemental hereto in form satisfactory to the Trustee, which
thereafter shall form a part hereof, for any one or more of the following
purposes:
(a) to add to the covenants and agreements of the Company and the
Guarantors in this Indenture contained, other covenants and agreements
thereafter to be observed for the benefit of the holders of all or any
series of Debt Securities (and if such covenants and agreements are to be
for the benefit of less than all series of Debt Securities, stating that
such covenants and agreements are expressly being included
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solely for the benefit of such series) or to surrender any right or power
herein reserved to or conferred upon the Company or the Guarantors; or
(b) to cure any ambiguity or to cure, correct or supplement any defect
or inconsistent provision contained in this Indenture or in any
supplemental indenture; or
(c) to make such provisions in regard to matters or questions arising
under this Indenture which may be necessary or desirable, or otherwise
change this Indenture in any manner which shall not adversely affect the
interests of the holders of Debt Securities of any series; or
(d) to evidence the succession of another corporation to the Company
or any Guarantor, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of the
Company or any Guarantor pursuant to Article X and to provide for the
adjustment of conversion rights pursuant to Section 13.7; or
(e) to establish the form or terms of the Debt Securities of any
series as permitted by Sections 2.1 and 2.2; or
(f) to change or eliminate any of the provisions of this Indenture,
provided that, except as otherwise contemplated by Section 2.2(11), any
such change or elimination shall become effective only when there is no
Debt Security outstanding of any series created prior thereto which is
entitled to the benefit of such provision; or
(g) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Debt
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to provide for uncertificated Debt
Securities in addition to certificated Debt Securities (so long as any
"registration-required obligation" within the meaning of Section 163(f)(2)
of the Code is in registered form for purposes of the Code); or
(h) to amend or supplement any provision contained herein, which was
required to be contained herein in order for this Indenture to be qualified
under the Trust Indenture Act of 1939, if the Trust Indenture Act of 1939
or regulations thereunder change what is so required to be included in
qualified indentures, in any manner not inconsistent with what then may be
required for such qualification; or
(i) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(j) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Debt Securities of one or more series any property or
assets; or
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(k) to add a Guarantor; or
(l) to add to or change any of the provisions of this Indenture as
contemplated in Section 11.7(b);
and the Company hereby covenants that it will fully perform all the requirements
of any such supplemental indenture which may be in effect from time to time.
Nothing in this Article XII contained shall affect or limit the right or
obligation of the Company to execute and deliver to the Trustee any instrument
of further assurance or other instrument which elsewhere in this Indenture it is
provided shall be delivered to the Trustee.
The Trustee shall join with the Company in the execution of any such
supplemental indenture, make any further appropriate agreements and stipulations
which may be therein contained and accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section
12.1 may be executed by the Company, the Guarantors and the Trustee without the
consent of the holders of any of the Debt Securities at the time Outstanding,
notwithstanding any of the provisions of Section 12.2.
SECTION 12.2. Modification of Indenture with consent of holders of Debt
Securities. With the consent (evidenced as provided in Section 8.1) of the
holders of more than 50% in aggregate principal amount of the Debt Securities at
the time Outstanding of each series affected by such supplement, the Company and
the Guarantors, when authorized by a resolution of each of their respective
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provision to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of such series of the Debt Securities; provided,
however, that no such supplemental indenture shall (i) extend the time or times
of payment of the principal of, premium, if any, or the interest on, any series
of Debt Securities, or reduce the principal amount of, premium, if any, or the
rate of interest on, any series of Debt Securities (and/or such other amount or
amounts as any Debt Securities or supplemental indentures with respect thereto
may provide to be due and payable upon declaration of acceleration of the
maturity thereof pursuant to Section 7.1) or change the currency of payment of
principal of, premium, if any, or interest on, any series of Debt Securities or
reduce any amount payable on redemption thereof or alter or impair the right to
convert the same at the rate and upon the terms provided in the Indenture or
alter or impair the right to require redemption at the option of the holder,
without the consent of the holder of each Debt Security so affected, or (ii)
reduce the percentage of Debt Securities of any series, the vote or consent of
the holders of which is required for such modifications and alterations, without
the consent of the holders of all Debt Securities then Outstanding of such
series under the Indenture. Notwithstanding the
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foregoing, no consent of the holders of Debt Securities shall be necessary to
permit the execution of supplemental indentures pursuant to Section 13.7.
Upon the request of the Company, accompanied by a copy of a resolution of
its Board of Directors certified by the Secretary or an Assistant Secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of holders of Debt
Securities as aforesaid, the Trustee shall join with the Company and the
Guarantors, as the case may be, in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may, in
its discretion, but shall not be obligated, to enter into such supplemental
indenture.
It shall not be necessary for the consent of the holders of Debt Securities
under this Section 12.2 to approve the particular form of any proposed
supplemental indenture, but is shall be sufficient if such consent shall approve
the substance thereof.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Debt Securities, or which modifies the rights of the
holders of Debt Securities of such series with respect to such provision, shall
be deemed not to affect the rights under this Indenture of the holders of Debt
Securities of any other series.
SECTION 12.3. Effect of supplemental indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article XII, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company, the Guarantors
and the holders of Debt Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee, subject to the provisions of Section 11.1, may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article XII.
SECTION 12.4. Supplemental indentures to conform to Trust Indenture Act.
Any supplemental indenture executed and delivered pursuant to the provisions of
this Article XII shall conform in all respects to the requirements of the Trust
Indenture Act of 1939 as then in effect.
SECTION 12.5. Notation on or exchange of Debt Securities. If an amendment,
supplement or waiver changes the terms of a Debt Security of any series, the
Trustee may require the holder of the Debt Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Debt Security
about the changed terms and return it to the holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
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Debt Security of any series shall issue and the Trustee shall authenticate a new
Debt Security of such series that reflects the changed terms.
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.1. Applicability of Article. Debt Securities of any series
which are convertible into Capital Stock at the option of the holder of Debt
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.2 for Debt Securities of any
series) in accordance with this Article. Each reference in this Article XIII to
"a Debt Security" or "the Debt Securities" refers to the Debt Securities of the
particular series that is convertible into Capital Stock. Each reference in
this Article to "Capital Stock" into which Debt Securities of any series are
convertible refers to the class of Capital Stock into which the Debt Securities
of such series are convertible in accordance with their terms (as specified as
contemplated by Section 2.2). If more than one series of Debt Securities with
conversion privileges are outstanding at any time, the provisions of this
Article XIII shall be applied separately to each such series.
SECTION 13.2. Right of holders of Debt Securities to convert Debt
Securities. Subject to and upon compliance with the terms of the Debt
Securities and the provisions of Section 5.7 and this Article XIII, at the
option of the holder thereof, any series of Debt Securities of any series of any
authorized denomination, or any portion of the principal amount thereof which is
$1,000 or any integral multiple of $1,000, may, at any time during the period
specified in the Debt Securities of such series, or in case such Debt Security
or portion thereof shall have been called for redemption, then in respect of
such Debt Security or portion thereof until and including, but not after (unless
the Company shall default in payment due upon the redemption thereof) the close
of business on the date fixed for redemption except that in the case of
redemption at the option of the holder of Debt Securities, if specified in the
terms of such Debt Securities, such right shall terminate upon receipt of
written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the class of
Preferred Stock or Class A Common Stock, or combination thereof, as specified in
such Debt Security, at the conversion rate for each $1,000 principal amount of
Debt Securities (such initial conversion rate reflecting an initial conversion
price specified in such Debt Security) in effect on the conversion date, or, in
case an adjustment in the conversion rate has taken place pursuant to the
provisions of Section 13.5, then at the applicable conversion rate as so
adjusted, upon surrender of the Debt Security or Debt Securities, the principal
amount of which is so to be converted, to the Company at any time during usual
business hours at the office or agency to be maintained by it in accordance with
the provisions of Section 4.2, accompanied by a written notice of election to
convert as provided in Section 13.3 and, if so required by the Company and the
Trustee, by a written instrument or instruments of transfer in form satisfactory
to the Company and the Trustee duly executed by the registered holder or his
attorney duly authorized in writing. All Debt Securities surrendered for
conversion shall, if surrendered to
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the Company or any conversion agent, be delivered to the Trustee for
cancellation and cancelled by it, or shall, if surrendered to the Trustee, be
cancelled by it, as provided in Section 2.11.
The initial conversion price or conversion rate in respect of a series of
Debt Securities shall be as specified in the Debt Securities of such series.
The conversion price or conversion rate will be subject to adjustment on the
terms set forth in Section 13.5 or such other or different terms, if any, as may
be specified by Section 2.2 for Debt Securities of such series. Provisions of
this Indenture that apply to conversion of all of a Debt Security also apply to
conversion of a portion of it.
SECTION 13.3. Issuance of shares of Capital Stock on conversion. As
promptly as practicable after the surrender, as herein provided, of any series
of Debt Securities or Debt Securities for conversion, the Company shall deliver
or cause to be delivered at its said office or agency to or upon the written
order of the holder of the Debt Security or Debt Securities so surrendered a
certificate or certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Capital Stock into which such
Debt Security or Debt Securities may be converted in accordance with the terms
thereof and the provisions of this Article XIII. Prior to delivery of such
certificate or certificates, the Company shall require a written notice at its
said office or agency from the holder of the Debt Security or Debt Securities so
surrendered stating that the holder irrevocably elects to convert such Debt
Security or Debt Securities, or, if less than the entire principal amount
thereof is to be converted, stating the portion thereof to be converted. Such
notice shall also state the name or names (with address and social security or
other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time
that such Debt Security or Debt Securities shall have been surrendered for
conversion and such notice shall have been received by the Company or the
Trustee, the rights of the holder of such Debt Security or Debt Securities as a
holder of Debt Securities shall cease at such time, the person or persons
entitled to receive the shares of Capital Stock upon conversion of such Debt
Security or Debt Securities shall be treated for all purposes as having become
the record holder or holders of such shares of Capital Stock at such time and
such conversion shall be at the conversion rate in effect at such time. In the
case of any series of Debt Securities of any series which is converted in part
only, upon such conversion, the Company shall execute and the Trustee or an
Authenticating Agent shall authenticate and deliver to the holder thereof, as
requested by such holder, a new Debt Security or Debt Securities of such series
of authorized denominations in aggregate principal amount equal to the
unconverted portion of such Debt Security.
If the last day on which a Debt Security may be converted is not a Business
Day in a place where a conversion agent is located, the Debt Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of stockholders or for
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the payment of dividends or for any other purpose, but certificates for shares
of Capital Stock shall be delivered as soon as the stock transfer books shall
again be opened.
SECTION 13.4. No payment or adjustment for interest or dividends. Unless
otherwise specified as contemplated by Section 2.2 for Debt Securities of such
series, Debt Securities surrendered for conversion during the period from the
close of business on any regular record date (or special record date for payment
of defaulted interest) next preceding any interest payment date to the opening
of business on such interest payment date (except Debt Securities called for
redemption on a redemption date within such period) when surrendered for
conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered holder is to receive on such interest payment date.
Payment of interest shall be made, as of such interest payment date or such
date, as the case may be, to the holder of record of the Debt Securities as of
such regular, or special record date, as applicable. Except where Debt
Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Debt Securities will be payable by the
Company on any interest payment date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any series of
Debt Securities with original issue discount, the fixed number of shares of
Capital Stock into which such Debt Security is convertible delivered by the
Company to the holder thereof shall be applied, first, to pay the accrued
original issue discount attributable to the period from the date of issuance to
the date of conversion of such Debt Security, and, second, to pay the balance of
the principal amount of such Debt Security.
SECTION 13.5. Adjustment of conversion rate. Unless otherwise specified as
contemplated by Section 2.2 for Debt Securities of such series, the conversion
rate for Debt Securities in effect at any time shall be subject to adjustment as
follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Debt Securities of
such series are convertible in shares of its Capital Stock, (ii) subdivide
the outstanding shares of the class of Capital Stock into which Debt
Securities of such series are convertible into a greater number of shares,
(iii) combine the outstanding shares of the class of Capital Stock into
which Debt Securities of such series are convertible into a smaller number
of shares, or (iv) issue by reclassification of the shares of the class of
Capital Stock into which Debt Securities of such series are convertible
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation) any shares, the
conversion rate for the Debt Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective
date of such subdivision, combination or reclassification, shall be
proportionately adjusted so that the holder of any series of Debt
Securities of such series surrendered for conversion after such time shall
be entitled to receive the number and kind of shares which he would have
owned or have been entitled to receive had such Debt Security been
converted immediately prior to such time. Similar adjustments shall be made
whenever any event listed above shall occur.
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(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Debt Securities of such series are convertible entitling them (for a period
expiring within 45 days after such record date) to subscribe for or
purchase shares of such class of Capital Stock (or securities convertible
into shares of such class of Capital Stock) at a price per share (or, in
the case of a right or warrant to purchase securities convertible into such
class of Capital Stock, having a conversion price per share, after adding
thereto the exercise price, computed on the basis of the maximum number of
shares of such class of Capital Stock issuable upon conversion of such
convertible securities, per share of such class of Capital Stock, so
issuable) less than the current market price per share of such class of
Capital Stock (as defined in subsection (d) below) on the date on which
such issuance was declared or otherwise announced by the Company (the
"Determination Date"), the number of shares of such class of Capital Stock
into which each $1,000 principal amount of Debt Securities shall be
convertible after such record date shall be determined by multiplying the
number of shares of such class of Capital Stock into which such principal
amount of Debt Securities was convertible immediately prior to such record
date by a fraction, of which the numerator shall be the number of shares of
such class of Capital Stock outstanding on the Determination Date plus the
number of additional shares of such class of Capital Stock offered for
subscription or purchase (or in the case of a right or warrant to purchase
securities convertible into such class of Capital Stock, the aggregate
number of additional shares of such class of Capital Stock into which the
convertible securities so offered are initially convertible), and of which
the denominator shall be the number of shares of such class of Capital
Stock outstanding on the Determination Date plus the number of shares of
such class of Capital Stock obtained by dividing the aggregate offering
price of the total number of shares so offered (or, in the case of a right
or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities
so offered, after adding thereto the aggregate exercise price of such
rights or warrants computed on the basis of the maximum number of shares of
such class of Capital Stock issuable upon conversion of such convertible
securities) by such current market price. Shares of such class of Capital
Stock of the Company owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed;
and to the extent that shares of such class of Capital Stock are not
delivered (or securities convertible into shares of such class of Capital
Stock are not delivered) after the expiration of such rights or warrants
(or, in the case of rights or warrants to purchase securities convertible
into such class of Capital Stock once exercised, the expiration of the
conversion right of such securities) the conversion rate shall be
readjusted to the conversion rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants (or
securities convertible into shares) been made upon the basis of delivery of
only the number of shares actually delivered. In the event that such rights
or warrants are not so issued, the conversion rate shall again be adjusted
to the conversion rate which would then be in effect if such record date
had not been fixed.
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(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Debt
Securities of such series are convertible (including any such distribution
made in connection with a consolidation or merger in which the Company is
the continuing corporation) of evidences of its indebtedness or assets
(excluding any cash dividends paid from retained earnings and dividends
payable in Capital Stock for which adjustment is made pursuant to
subsection (a) above) or subscription rights or warrants (excluding
subscription rights or warrants to purchase the class of Capital Stock into
which Debt Securities of such series are convertible), the number of shares
of such class of Capital Stock into which each $1,000 principal amount of
Debt Securities of such series shall be convertible after such record date
shall be determined by multiplying the number of shares of such class of
Capital Stock into which such principal amount of Debt Securities was
convertible immediately prior to such record date by a fraction, of which
the numerator shall be the fair market value of the assets of the Company,
after deducting therefrom all liabilities of the Company and all
preferences (including accrued but unpaid dividends) in respect of classes
of Capital Stock having a preference with respect to the assets of the
Company over such class of Capital Stock (all as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
certificate signed by any Chairmen of the Board, President or any Vice
President (regardless of Vice Presidential designation) and the Chief
Financial Officer or Treasurer of the Company, filed with the Trustee and
each conversion agent) on such record date, and of which the denominator
shall be such fair market value after deducting therefrom such liabilities
and preferences, less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
statement filed with the Trustee and each conversion agent) of the assets
or evidences of indebtedness, so distributed or of such subscription rights
or warrants applicable, so distributed. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the conversion rate shall again be
adjusted to the conversion rate which would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above and
Section 13.6, the current market price per share of the Capital Stock on
any date as of which such price is to be computed shall mean the average of
the Closing Prices for the 30 consecutive Business Days commencing 45
Business Days before such date.
(e) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1%
in such rate; provided, however, that any adjustments which by reason of
this subsection (e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment, and provided, further,
that adjustments shall be required and made in accordance with the
provisions of this Article XIII (other than this subsection (e)) not later
than such time as may be required in order to preserve the tax-free nature
of a distribution for United States income tax purposes to the holders of
Debt Securities or the class of Capital Stock into which such Debt
Securities are convertible. All
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calculations under this Article XIII shall be made to the nearest cent or
to the nearest one-thousandth of a share, as the case may be. Anything in
this Section 13.5 to the contrary notwithstanding, the Company shall be
entitled to make such adjustments in the conversion rate, in addition to
those required by this Section 13.5, as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights to purchase stock or securities, or
distribution of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable for
United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein provided, the
Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Debt Securities of such
series pursuant to Section 4.2, a certificate of a firm of independent
public accountants of recognized national standing selected by the Board of
Directors (who may be the regular accountants employed by the Company)
setting forth the conversion rate after such adjustment and setting forth a
brief statement of the facts requiring such adjustment and a computation
thereof. Such certificate shall be conclusive evidence of the correctness
of such adjustment. Neither the Trustee nor any conversion agent shall be
under any duty or responsibility with respect to any such certificate or
any facts or computations set forth therein, except to exhibit said
certificate from time to time to any holder of Debt Securities of such
series desiring to inspect the same. The Company shall promptly cause a
notice setting forth the adjusted conversion rate to be mailed to the
holders of Debt Securities of such series, as their names and addresses
appear upon the registration books of the Company.
(g) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or
in lieu of shares of the class of Capital Stock into which such Debt
Securities are convertible or as a result of an adjustment made pursuant to
subsection (a) above, the holder of any series of Debt Securities of such
series thereafter surrendered for conversion shall become entitled to
receive any shares of the Company other than shares of the class of Capital
Stock into which the Debt Securities of such series are convertible,
thereafter the number of such other shares so receivable upon conversion of
any series of Debt Securities shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the class of Capital Stock into which the Debt
Securities of such series are convertible contained in subsections (a) to
(f), inclusive, above, and the provisions of this Article XIII with respect
to the class of Capital Stock into which the Debt Securities of such series
are convertible shall apply on like terms to any such other shares.
(h) The conversion rate with respect to any Debt Securities with
original issue discount, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount
Securities for accrued original issue discount.
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(i) In the event that the Debt Securities of any series are
convertible into more than one class of Capital Stock, the provisions of
this Section 13.5 shall apply separately to events affecting each such
class.
SECTION 13.6. No fractional shares to be issued. No fractional shares of
Capital Stock shall be issued upon conversions of Debt Securities. If more than
one Debt Security of any series shall be surrendered for conversion at one time
by the same holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of Debt Securities of such series (or specified portions thereof to the
extent permitted hereby) so surrendered. Instead of a fraction of a share of
Capital Stock which would otherwise be issuable upon conversion of any series
of Debt Securities or Debt Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction of a share in an
amount equal to the same fractional interest of the current market price (as
defined in Section 13.5) per share of Capital Stock on the Business Day next
preceding the day of conversion.
SECTION 13.7. Preservation of conversion rights upon consolidation, merger,
sale or conveyance. In case of any consolidation of the Company with, or merger
of the Company into, any other corporation (other than a consolidation or merger
in which the Company is the continuing corporation), or in the case of any sale
or transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Article X and XII as they
relate to supplemental indentures, providing that the holder of each Debt
Security then Outstanding of a series which was convertible into Capital Stock
shall have the right thereafter to convert such Debt Security into the kind and
amount of shares of stock and other securities and property, including amount of
shares of stock and other securities and property, including cash, receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Capital Stock of the Company into which such Debt Securities might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article XIII. Neither the Trustee nor any conversion agent
shall be under any responsibility to determine the correctness of any provision
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property receivable by holders
of Debt Securities upon the conversion of their Debt Securities after any such
consolidation, merger, sale or transfer, or to any adjustment to be made with
respect thereto and, subject to the provisions of Section 11.1, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in
the case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a holder of the Debt Securities includes
stock or other securities and property of a corporation other than the successor
or purchasing corporation, then such supplemental indenture shall
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also be executed by such other corporation and shall contain such additional
provisions to protect the interests of the holders of the Debt Securities as the
Board of Directors shall reasonably consider necessary. The above provisions of
this Section 13.7 shall similarly apply to successive consolidations, mergers,
sales or transfers.
SECTION 13.8. Notice to holders of Debt Securities of a series prior to
taking certain types of action. With respect to the Debt Securities of any
series, in case:
(a) the Company shall authorize the issuance to all holders of the
class of Capital Stock into which Debt Securities of such series are
convertible of rights or warrants to subscribe for or purchase shares of
its Capital Stock or of any other right:
(b) the Company shall authorize the distribution to all holders of the
class of Capital Stock into which Debt Securities of such series are
convertible of evidences of its indebtedness or assets (except for the
exclusions with respect to certain dividends set forth in Section 13.5(c));
(c) of any subdivision, combination or reclassification of the class
of Capital Stock into which Debt Securities of such series are convertible
or of any consolidation or merger to which the Company is a party and for
which approval by the stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Debt Securities of such
series pursuant to Section 4.2, and shall cause to be mailed to the holders of
Debt Securities of such series, at their last addresses as they shall appear
upon the registration books of the Company, at least ten days prior to the
applicable record date hereinafter specified, a notice stating (i) the date as
of which the holders of such class of Capital Stock to be entitled to receive
any such rights, warrants or distribution are to be determined, or (ii) the date
on which any such subdivision, combination, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation, winding up or other action is
expected to become effective, and the date as of which it is expected that
holders of record of such class of Capital Stock shall be entitled to exchange
their Capital Stock of such class for securities or other property, if any,
deliverable upon such subdivision, combination, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation, winding up or other action.
The failure to give the notice required by this Section 13.8 or any defect
therein shall not affect the legality or validity of any distribution, right,
warrant, subdivision, combination, reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action, or the
vote upon any of the foregoing. Such notice shall also be published by and at
the expense of the Company not later than the aforesaid filing date at least
once in an Authorized Newspaper.
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SECTION 13.9. Covenant to reserve shares for issuance on conversion of Debt
Securities. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Debt
Securities of any series as herein provided, such number of shares of Capital
Stock of such class as shall then be issuable upon the conversion of all
Outstanding Debt Securities of such series. The Company covenants that all
shares of Capital Stock which shall be so issuable shall, when issued or
delivered, be duly and validly issued shares of the class of authorized Capital
Stock into which Debt Securities of such series are convertible, and shall be
fully paid and nonassessable, free of all liens and charges and not subject to
preemptive rights and that, upon conversion, the appropriate capital stock
accounts of the Company will be duly credited.
SECTION 13.10. Compliance with governmental requirements. The Company
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Debt Securities hereunder require registration or
listing with or approval of any governmental authority under any Federal or
State law, pursuant to the Securities Act of 1933, as amended, or the Securities
Exchange Act, or any national or regional securities exchange on which such
Capital Stock is listed at the time of delivery of any shares of such Capital
Stock, before such shares may be issued upon conversion, the Company will use
its best efforts to cause such shares to be duly registered, listed or approved,
as the case may be.
SECTION 13.11. Payment of taxes upon certificates for shares issued upon
conversion. The issuance of certificates for shares of Capital Stock upon the
conversion of Debt Securities shall be made without charge to the converting
holders of Debt Securities for any tax (including, without limitation, all
documentary and stamp taxes) in respect of the issuance and delivery of such
certificates, and such certificates shall be issued in the respective names of,
or in such names as may be directed by, the holders of the Debt Securities
converted; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate in a name other than that of the holder of the
Debt Security converted, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
SECTION 13.12. Trustee's duties with respect to conversion provisions. The
Trustee and any conversion agent shall not at any time be under any duty or
responsibility to any holder of Debt Securities to determine whether any facts
exist which may require any adjustment of the conversion rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the registration under securities laws,
listing, validity or value (or the kind or amount) of any shares of Capital
Stock, or of any other securities or property, which may at any time be issued
or delivered upon the conversion of any series of Debt Securities; and neither
the Trustee nor any conversion agent
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makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any series of
Debt Securities for the purpose of conversion; and the Trustee, subject to the
provisions of Section 11.1, and any conversion agent shall not be responsible
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article XIII.
ARTICLE XIV
GUARANTEES
SECTION 14.1. Guarantee. If any of the Guarantors guarantee any series of
Debt Securities, such series of Debt Securities shall be guaranteed, jointly and
severally, by each Guarantor. Subject to the provisions of this Article XIV and
the terms of a Debt Security of any series, each Guarantor hereby irrevocably
and unconditionally guarantees, jointly and severally, to each holder of Debt
Securities and the Trustee, on behalf of the holders of Debt Securities, (a) the
due and punctual payment of the principal of, premium if any, and interest on
each Debt Security, when and as the same shall become due and payable, whether
at stated maturity, acceleration, or otherwise, the due and punctual payment of
interest on the overdue principal of and interest, if any, on the Debt
Securities, to the extent lawful, and the due and punctual performance of all
other obligations of the Company to the holders of Debt Securities or the
Trustee all in accordance with the terms of such Debt Security and this
Indenture provided that this Guarantee shall not be applicable to, or guarantee
the Company's obligation with respect to the conversion of Debt Securities into
Preferred Stock or Class A Common Stock if applicable to the Debt Securities of
such series, and (b) in the case of any extension of time of payment or renewal
of any Debt Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by declaration of acceleration or
otherwise (the obligations in subsections (a) and (b) hereof being the
"Guaranteed Obligations"). Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by the Company to the holders of
Debt Securities, or the Trustee under the Debt Securities and this Indenture but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Company.
The Guarantors hereby agree that their obligations hereunder shall be absolute
and unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Debt Security or this Indenture,
any failure to enforce the provisions of any such Debt Security or this
Indenture, any waiver, modification or indulgence granted to the Company with
respect thereto, by any Guaranteed Party or any other circumstances which may
otherwise constitute a legal or equitable discharge or defense of the Company or
a surety or guarantor. The Guarantors hereby waive diligence, presentment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, the
benefit of
-72-
discussion, protest or notice with respect to any such Debt Security or the
indebtedness evidenced thereby and all demands whatsoever (except as specified
above), and covenant that this Guarantee will not be discharged as to any such
Debt Security except by payment in full of the Guaranteed Obligations, pursuant
to Article X, or upon conversion of such Debt Security in accordance with
Article XIII. Each Guarantor further agrees that, as between such Guarantor and
the Guaranteed Parties, (x) the maturity of Guaranteed Obligations may be
accelerated as provided in Article VII for the purpose of the Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations, and (y) in the event of
any declaration of acceleration of such Guaranteed Obligations as provided in
Article VII, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article VII, the Trustee shall promptly
make a demand for payment on the Debt Securities under each Guarantee provided
for in this Article XIV and not discharged.
Each Guarantor hereby irrevocably waives any claim or other rights that it
may now or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under this
Indenture, or any other document or instrument including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the
Guaranteed Parties against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be paid
to any Guarantor in violation of the preceding sentence and the Guaranteed
Obligations shall not have been paid in full, such amount shall be deemed to
have been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Guaranteed Parties, and shall forthwith be paid to the Trustee.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the issuance of the Debt Securities and that the waiver set forth in this
Section is knowingly made in contemplation of such benefits.
SECTION 14.2. Obligations of the Guarantors Unconditional. Nothing
contained in this Article XIV elsewhere in this Indenture or in any series of
Debt Securities or in the Guarantee is intended to or shall impair, as between
the Guarantors and the holders of Debt Securities, the obligations of the
Guarantors, which obligations are independent of the obligations of the Company
under the Debt Securities and this Indenture and are absolute and unconditional,
to pay to the holders of Debt Securities the Guaranteed Obligations as and when
the same shall become due and payable in accordance with the provisions of this
Guarantee and this Indenture, nor shall anything herein or therein prevent the
Trustee or any holder of Debt Securities from exercising all remedies otherwise
permitted by applicable law upon an Event of Default under this Indenture. Each
payment to be made by any Guarantor hereunder in respect of the Guaranteed
Obligations shall be payable in the currency or currencies in which such
Guaranteed Obligations are denominated.
-73-
SECTION 14.3. Execution of Guarantee. To evidence its obligations under
this Article XIV, each Guarantor hereby agrees to execute a guarantee in a form
set forth in the supplemental indenture for such series of Debt Securities, to
be endorsed on each Debt Security authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of the Guarantors by their
respective Presidents or Vice Presidents (regardless of Vice Presidential
designation), under their corporate seals reproduced thereon attested by their
respective Secretaries or Assistant Secretaries. The signature of any of these
officers on the Debt Securities may be manual or facsimile. Each Guarantor
hereby agrees that its Guarantee set forth in this Article XIV shall remain in
full force and effect notwithstanding any failure to endorse such Guarantee on
any series of Debt Securities.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Debt Security on which this
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
SECTION 14.4. Withholding. All payments made by a Guarantor with respect
to the Guarantees will be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any country
(other than the United States) or any political subdivision thereof or any
authority therein or thereof, having power to tax, unless the withholding or
deduction of such taxes, duties, assessments or governmental charges is then
required by law. In the event that any country (other than the United States)
or any political subdivision thereof or any authority therein or thereof,
imposes any such withholding or deduction on (a) any payments made by a
Guarantor with respect to the Guarantees or (b) any net proceeds on the sale to
or exchange with any Guarantor of the Debt Securities, such Guarantor will pay
such additional amounts (the "Additional Amounts") as may be necessary in order
that the net amounts received in respect of such payments or sale or exchange by
the holders of the Debt Securities or the Trustee, as the case may be, after
such withholding or deduction shall equal the respective amounts that would have
been received in respect of such payments or sale or exchange in the absence of
such withholding or deduction; except that no such Additional Amounts shall be
payable with respect to any series of Debt Securities held by or on behalf of a
holder who is liable for such taxes, duties, assessments or governmental charges
in respect of such Debt Security by reason of his being a citizen or resident
of, or carrying on a business in, the country of residence of any Guarantor.
Notwithstanding the foregoing, a Guarantor making a payment on the Debt
Securities pursuant to the Guarantee shall not be required to pay any Additional
Amounts if (x) the beneficial holder of a Debt Security receives by certified
mail (evidenced by a return receipt signed by such beneficial holder) (i)
written notice from such Guarantor no less than 60 days in advance of making
such payment and (ii) the appropriate forms or instructions necessary to enable
such beneficial holder to certify or document the availability of an exemption
from, or reduction of, the withholding or deduction of such taxes under
applicable law, which such instructions shall clearly specify that Additional
Amounts hereunder may not be paid if such forms are not completed by such
beneficial holder, and (y) the Guarantor that would otherwise have to pay such
Additional Amounts establishes to the satisfaction of the Trustee that the
obligation to pay such Additional Amounts would not have arisen but for the
failure
-74-
of such beneficial holder to (i) duly complete such forms as were actually
received by such beneficial holder or respond to such instructions and (ii)
provide to such Guarantor such duly completed forms or responses to
instructions. Without prejudice to the survival of any of the agreements of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in this Section 14.4 shall survive the payment in full of the Guaranteed
Obligations and all other amounts payable under this Guarantee.
SECTION 14.5. Limitation of Guarantee. The Company and each holder of a
Debt Security by his or her acceptance thereof, hereby confirm that it is the
intention of all such parties that any Guarantee of the Guaranteed Obligations
executed by a Guarantor pursuant to this Indenture and the terms of a
supplemental indenture for any series of Debt Securities not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act or any similar federal or state law. To
effectuate the foregoing intention, the holders of Debt Securities hereby
irrevocably agree that in the event that any such Guarantee would constitute or
result in a violation of any applicable fraudulent conveyance or similar law of
any relevant jurisdiction, the liability of the Guarantor under such Guarantee
shall be reduced to the maximum amount, after giving effect to all other
contingent and fixed liabilities of such Guarantor, permissible under the
applicable fraudulent conveyance or similar law.
SECTION 14.6. Release of Guarantee. (a) Concurrently with the payment in
full of all of the Guaranteed Obligations, the Guarantors shall be released from
and relieved of their obligations under this Article XIV. Upon the delivery by
the Company to the Trustee of an Officers' Certificate and, if requested by the
Trustee, an Opinion of Counsel to the effect that the transaction giving rise to
the release of such obligations was made by the Company in accordance with the
provisions of this Indenture and the Debt Securities, the Trustee shall execute
any documents reasonably required in order to evidence the release of the
Guarantors from their obligations. If any of the Guaranteed Obligations are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantors under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Guaranteed Obligations are paid in full, and the Guarantors shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
(b) Upon the sale or disposition of all the Capital Stock of a Guarantor
(by merger or otherwise) to a Person other than the Company or any other
Guarantor and which sale or disposition is otherwise in compliance with the
terms of this Indenture, such Guarantor shall be deemed released from all
obligations under this Article XIV; provided, however, that any such termination
-------- -------
upon such sale or disposition shall occur if and only to the extent that all
obligations of such Guarantor under all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, indebtedness of
the Company or any other Guarantor shall also terminate upon such sale or
disposition. Upon the delivery by the Company to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of such obligations was
made in accordance with the provisions of this Indenture and the Debt
-75-
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of such Guarantor from its obligations. Any Guarantor
not so released remains liable for the full amount of principal of and interest
on the Debt Securities as provided in this Article XIV.
(c) With respect to any series of Debt Securities, upon conversion of such
Debt Security in accordance with the provisions of Article XIII, the Guarantors
shall be released from and relieved of their obligations with respect to such
Debt Security under this Article XIV. Upon such conversion, if so requested by
a Guarantor, the Trustee shall execute any documents reasonably required in
order to evidence the release of the Guarantors from their obligations. If any
of the Guaranteed Obligations are revived and reinstated after the termination
of this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the Guaranteed Obligations are paid in full, and
the Guarantors shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
-76-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
CANANDAIGUA BRANDS, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
BATAVIA WINE CELLARS, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ INCORPORATED
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ BRANDS, LTD.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇, LTD.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ BRANDS OF CALIFORNIA, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ BRANDS OF GEORGIA, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ DISTILLERS IMPORT CORP.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ FINANCIAL CORPORATION
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇▇ POINT BEVERAGE CO.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
MONARCH IMPORT COMPANY
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
CANANDAIGUA WINE COMPANY, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
THE VIKING DISTILLERY, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
CANANDAIGUA EUROPE LIMITED
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
POLYPHENOLICS, INC.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
CANANDAIGUA LIMITED
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇▇ TRADING CORP.
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Trustee
By: __________________________________
Name:
Title:
Attest: ____________________
Name:
Title:
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
_________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of CANANDAIGUA BRANDS, INC., a Delaware corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
BATAVIA WINE CELLARS, INC., a New York corporation, the corporation described in
and which executed the above instrument; that he or she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of ▇▇▇▇▇▇ INCORPORATED, a Delaware corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
▇▇▇▇▇▇ BRANDS, LTD., a Delaware corporation, the corporation described in and
which executed the above instrument; that he or she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of ▇▇▇▇▇▇ ▇▇▇▇▇, LTD., a Maryland corporation, the corporation
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
▇▇▇▇▇▇ BRANDS OF CALIFORNIA, INC., a Connecticut corporation, the corporation
described in and which executed the above instrument; that he or she knows the
seal of said corporation; that the seal affixed to the said instrument is such
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he or she signed his or her name thereto by like
authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of ▇▇▇▇▇▇ BRANDS OF GEORGIA, INC., a Georgia corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
▇▇▇▇▇▇ DISTILLERS IMPORT CORP., a New York corporation, the corporation
described in and which executed the above instrument; that he or she knows the
seal of said corporation; that the seal affixed to the said instrument is such
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he or she signed his or her name thereto by like
authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of ▇▇▇▇▇▇ FINANCIAL CORPORATION, a Delaware corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
▇▇▇▇▇▇▇ POINT BEVERAGE CO., a Wisconsin corporation, the corporation described
in and which executed the above instrument; that he or she knows the seal of
said corporation; that the seal affixed to the said instrument is such seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he or she signed his or her name thereto by like
authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
MONARCH IMPORT COMPANY, an Illinois corporation, the corporation described in
and which executed the above instrument; that he or she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
CANANDAIGUA WINE COMPANY, INC., a New York corporation, the corporation
described in and which executed the above instrument; that he or she knows the
seal of said corporation; that the seal affixed to the said instrument is such
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he or she signed his or her name thereto by like
authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
THE VIKING DISTILLERY, INC., a Georgia corporation, the corporation described in
and which executed the above instrument; that he or she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
she resides at _________________, that he or she is ______________________ of
CANANDAIGUA EUROPE LIMITED, a New York corporation, the corporation described in
and which executed the above instrument; that he or she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of POLYPHENOLICS, INC., a New York corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of CANANDAIGUA LIMITED, a company organized under the laws of
England and Wales, the company described in and which executed the above
instrument; that he knows the corporate seal of said company; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said company; and that he signed his name
thereto by like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the ____ day of ____________, ____, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at _______________________________________: that he is
_________________ of ▇▇▇▇▇▇▇ TRADING CORP., a New York corporation, the
corporation described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
---------------------------
STATE OF NEW YORK __________ )
) ss.:
COUNTY OF __________________ )
On the _____ day of ________________, ____, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
he or she resides at _________________, that he or she is ______________________
of ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, an Illinois banking corporation described in
and which executed the above instrument; that she knows the seal of said
corporation; that the seal affixed to the said instrument is such seal; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he or she signed his or her name thereto by like authority.
[NOTARIAL SEAL]
---------------------------