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EXHIBIT 4.5
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METRICOM, INC.
METRICOM FINANCE, INC.
SUBORDINATED INDENTURE
DATED AS OF DECEMBER 29, 1999
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
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CROSS-REFERENCE TABLE*
Trust Indenture Act
Section Indenture
310 (a)(1).................................................................7.10
(a)(2) ................................................................7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(a)(5).................................................................7.10
(b)....................................................................7.10
(c)....................................................................N.A.
311(a).....................................................................7.11
(b)....................................................................7.11
(c)....................................................................N.A.
312 (a)....................................................................2.06
(b)....................................................................10.03
(c)....................................................................10.03
313(a).....................................................................7.06;
(b)(2).................................................................7.06;
(c)....................................................................7.07
10.02
314(a).....................................................................4.03;
10.02
(c)(1).................................................................10.04
(c)(2).................................................................10.04
(c)(3).................................................................N.A.
(e)....................................................................10.05
(f)....................................................................NA
315 (a)....................................................................7.01
(b)....................................................................7.05,
10.02
(c)....................................................................7.01
(d)....................................................................7.01
(e)....................................................................6.11
316 (a)(last sentence).....................................................2.09
(a)(1)(A)..............................................................6.05
(a)(1)(B)..............................................................6.04
(a)(2).................................................................N.A.
(b)....................................................................6.07
(c)....................................................................2.12
317 (a)(1).................................................................6.08
(a)(2).................................................................6.09
(b)....................................................................2.04
318 (a)....................................................................10.01
(b)....................................................................N.A.
(c)....................................................................10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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INDENTURE dated as of December 29, 1999 between Metricom, Inc., a
Delaware corporation (the "Company"), Metricom Finance, Inc., a Delaware
corporation ("Finance Sub" and, together with the Company, the "Issuers" and
each an "Issuer"), and Bank One Trust Company, N.A., a national banking
association, as trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of their unsecured
debentures, securities or other evidence of indebtedness (herein called the
"Notes"), which may or may not be convertible into or exchangeable for any
securities of any Person (including the Company), to be issued in one or more
series as provided in this Indenture.
The Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the holders of the Notes or
of any series thereof (the "Holders"), as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
Unless otherwise provided in a Supplemental Indenture, the
following terms have the indicated meaning for purposes of this Indenture:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control" and
correlative meanings, the terms "controlling," "controlled by" and "under common
control with," as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Authenticating Agent" means any person authorized by the Trustee
to act on behalf of the Trustee to authenticate the Notes.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means (1) in respect of a limited liability
company, the board of advisors of that company; (2) in respect of a corporation,
the board of directors of the corporation, or any authorized committee thereof;
and (3) in respect of any other Person, the board or committee of that Person
serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of an Issuer to have been duly adopted by
the Board of Directors (or a committee of the Board of Directors empowered to
adopt such resolution) and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
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"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, in equity of such Person, whether now outstanding
or issued after the date the Notes are issued, including, without limitation,
all Common Stock and Preferred Stock of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity, other than Preferred
Stock of that Person, whether now outstanding or issued after the date the notes
are issued, including without limitation, all series and classes of that common
stock.
"Company" means Metricom, Inc., a Delaware corporation, and any
and all successors thereto.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 10.02 hereof or such other address as to which the Trustee
may give notice to the Issuers.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated security registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof, in
substantially the form of Exhibit A hereto except that such note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.04 hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock, but excluding any Indebtedness that is
convertible into, or exchangeable for, Capital Stock.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear systems.
"Exchange Act" means the Notes Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, the statements and
pronouncements of the Financial Accounting Standards Board and such other
statements by such other entities as have been approved by a significant segment
of the accounting
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profession, which are applicable at the date of any determination made under
this Indenture or any Supplemental Indenture.
"Global Note" means a Note bearing the legend specified in
Section 2.07(f) evidencing all or a part of a series of Notes issued in
accordance with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.07(f), which is required to be placed on all Global Notes issued under this
Indenture.
"Government Obligations" means direct obligations, or
certificates representing an ownership interest in such obligations, of the
United States, including any agency or instrumentality of the United States, for
the payment of which the full faith and credit of the United States is pledged
and which are not callable or redeemable at the issuer's option.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including by way of a pledge of assets or
through letters of credit or reimbursement agreements in respect thereof), of
all or any part of any Indebtedness.
"Guarantor" means Metricom, Inc. and any other Person that may
from time to time become a guarantor of the Notes, until any such party is
released from such guarantee pursuant to the provisions of this Indenture, and
each of their respective successors.
"Hedging Obligations" means, with respect to any Person, the net
payment obligations of that Person under (1) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (2) other
agreements or arrangements in the ordinary course of business and pursuant to
past practices designed to protect that Person against fluctuations in commodity
prices, interest rates or currency exchange rates, in any case, not entered into
for speculative purposes.
"Holder" means a Person in whose name a Note is registered.
"Holding Company Reorganization" means a transaction in which the
Company either:
(1) contributes all or substantially of the Company's assets to Finance
Sub, but retains the Company's obligations under the Notes and any other
Indebtedness providing for such a transaction;
(2) a wholly owned subsidiary of Finance Sub formed solely for the
purpose of effecting the Holding Company Reorganization merges with the
Company, and in which Finance Sub becomes the sole holder of all of the
issued and outstanding Capital Stock of the surviving entity and all of
the holders of the Capital Stock of the Company become the holders of
all of the issued and outstanding shares of the Capital Stock of Finance
Sub; or
(3) a merger of the Company with and into a single-member limited
liability company, all of the issued and outstanding Capital Stock of
which is owned by Finance Sub and all of the holders of the Capital
Stock of the Company become the holders of all of the issued and
outstanding shares of the Capital Stock of Finance Sub.
"Indebtedness" means, with respect to any Person, any
indebtedness of that Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or
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similar instruments or letters of credit, or reimbursement agreements in respect
of letters of credit, or banker's acceptances or representing Capital Lease
Obligations, the balance deferred and unpaid of the purchase price of any
property or representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, or all Disqualified Stock
valued at the greater of the Person's voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, if and to the extent any of
the foregoing indebtedness, other than letters of credit and Hedging
Obligations, would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of that Person, whether or not such Indebtedness is
assumed by that Person, and, to the extent not otherwise included, the guarantee
by such Person of any Indebtedness of any other Person, and any liability,
whether or not contingent, whether or not it appears on the balance sheet of
that Person. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest, and
(2) the principal amount of Indebtedness, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time by one or more Supplemental Indentures hereto in accordance with
Article 9 hereof.
"Indentures" means this Indenture, the Senior Indenture, and any
Supplemental Indentures hereto and thereto.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date," when used with respect to any series of
Notes, means the Stated Maturity of an installment of interest on such Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of or agreement to give any
financing statement under the Uniform Commercial Code or equivalent statutes of
any jurisdiction.
"Maturity," when used with respect to any Indebtedness, means the
date on which the principal of such Indebtedness or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
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"Non-Recourse Debt" means Indebtedness: (1) as to which neither
the Issuers nor any of their Restricted Subsidiaries (a) provides credit support
of any kind, including any undertaking, agreement or instrument that would
constitute Indebtedness, (b) is directly or indirectly liable, as a guarantor or
otherwise, or (c) constitutes the lender; (2) no default with respect to which,
including any rights that the holders of that Indebtedness may have to take
enforcement action against an Unrestricted Subsidiary, would permit upon notice,
lapse of time or both any holder of any other of their Indebtedness, other than
the notes, or of the Indebtedness of any of their Restricted Subsidiaries to
declare a default on that other Indebtedness or cause the payment of that other
Indebtedness to be accelerated or payable prior to its Stated Maturity; and (3)
as to which the lenders have been notified in writing that they will not have
any recourse to their stock or assets or the stock or assets of any of their
Restricted Subsidiaries.
"Note Guarantee" means the Guarantee by the Company of Finance
Sub's payment obligations under this Indenture and on the Notes.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Notes" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Notes
authenticated and delivered under this Indenture, exclusive, however, of Notes
of any series as to which such Person is not Trustee.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of
an Issuer by at least one Officer of such Issuer, who must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of such Issuer, that, if applicable, meets the
requirements of Sections 10.04 and 10.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to an
Issuer, any Subsidiary of an Issuer or the Trustee.
"Original Issue Discount Note" means any Note which provides for
an amount less than the principal amount thereof to be due and payable upon
Maturity thereof.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the DTC, shall include Euroclear and Cedel.
"Paying Agent" means any Person (including the Issuers acting as
Paying Agent) authorized by the Issuers to pay the principal, premium, if any,
or interest on any Notes on behalf of the Issuers.
"Person" means any natural person, limited liability company,
corporation, partnership, government, agency or instrumentality of a government,
or any other entity.
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"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity that have a preference as
to the payment of dividends or as to payments upon a liquidation of that Person,
whether now outstanding or issued after the date the Notes are issued, including
without limitation, all series and classes of that Preferred Stock.
"principal" of Indebtedness means the principal of the
Indebtedness plus the premium, if any,, if and when applicable, on the
Indebtedness.
"redemption date," when used with respect to any Notes, or series
thereof, to be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"redemption price," when used with respect to any Note, or series
thereof, to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any of Subsidiary of a Person other
than an Unrestricted Subsidiary of that Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means Indebtedness provided for in
accordance with that certain Senior Indebtedness evidenced by a written
agreement between the Company and lender parties thereto providing for term loan
borrowings, revolving credit borrowings, leveraged lease borrowings, letters of
credit or other indebtedness or obligations, and including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case, as amended, extended, renewed, restated,
supplemented or otherwise modified (in whole or in part, and without limitation
as to amount, terms, conditions, covenants and other provisions) from time to
time, and any agreement (and related document) governing Indebtedness incurred
to refinance, in whole or in part, the borrowings and commitments then
outstanding or permitted to be outstanding under such Senior Credit Facility or
a successor Senior Credit Facility, whether by the same or any other lender or
group of lenders.
"Senior Indebtedness" of the Company means (a) the principal,
premium, if any, and interest with respect to all indebtedness for money
borrowed of the Company whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such indebtedness is not senior or prior in right of
payment to the Securities and (b) amendments, supplements, deferrals, renewals,
extensions, modifications and refundings of any liability of the types referred
to in clause (a) above.
"Senior Credit Facility" means Indebtedness provided for in
accordance with that certain Senior Indebtedness evidenced by a written
agreement between the Company and lender parties thereto
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providing for term loan borrowings, revolving credit borrowings, leveraged lease
borrowings, letters of credit or other indebtedness or obligations, and
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case, as amended, extended,
renewed, restated, supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement (and related document)
governing Indebtedness incurred to refinance, in whole or in part, the
borrowings and commitments then outstanding or permitted to be outstanding under
such Senior Credit Facility or a successor Senior Credit Facility, whether by
the same or any other lender or group of lenders.
"Senior Indebtedness" of any Person means (a) the principal,
premium, if any, and interest with respect to all indebtedness for money
borrowed of the Person whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such indebtedness is not senior or prior in right of
payment to the Securities and (b) amendments, supplements, deferrals, renewals,
extensions, modifications and refundings of any liability of the types referred
to in clause (a) above.
"Senior Indenture" means that certain Senior Notes Indenture by
and among the Issuers and Bank One Trust Company, N.A., as trustee, dated as of
December 29, 1999 relating to the Senior Notes.
"Senior Notes" means those securities issued from time to time in
one or more series under the Subordinated Indenture and any indentures
supplemental thereto.
"Shelf Registration Statement" means the shelf registration
statement filed by the Issuers with the SEC on Form S-3 under the Securities
Act, in connection with the Notes.
"Significant Subsidiary" means any Subsidiary of the Company or
Finance Sub that is a "significant subsidiary" within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act.
"Stated Maturity" means, (1) with respect to any Indebtedness,
the date specified in such Indebtedness as the fixed date on which the final
installment of principal of such Indebtedness is due and payable and (2) with
respect to any scheduled installment of principal of or interest on any
Indebtedness, the date specified in such Indebtedness as the fixed date on which
such installment is due and payable.
"Subsidiary" means, with respect to any Person, (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
that Person and (2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or an entity described in clause (1) and
related to such Person or (b) the only general partners of which are such Person
or of one or more entities described in clause (1) and related to such Person or
(c) any combination entities described in clauses (1) and (2).
"Supplemental Indenture" means one or more indentures
supplemental to one or both of the Indentures in accordance with Article 9
hereof and thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
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"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary that is designated
by a Board of Directors as an Unrestricted Subsidiary pursuant to a resolution
of the Board of Directors, but only to the extent that such Subsidiary: (1) has
no Indebtedness other than Non-Recourse Debt; (2) is a Person with respect to
which neither the Issuers nor any of their Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Equity Interests,
or (b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results.
"Voting Stock" of any Person as of any date means the Capital
Stock of that Person that is at the time entitled to vote in the election of
directors or similar individuals of that Person.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Authentication Order"........................................2.03
"Benefited Party".............................................12.01
"Covenant Defeasance".........................................8.03
"DTC".........................................................2.04
"Event of Default"............................................6.01
"Legal Defeasance" ...........................................8.02
"Paying Agent"................................................2.04
"Payment Default".............................................6.01
"Registrar"...................................................2.04
"Successor Company"...........................................5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" means the Trustee; and
"obligor" on the Notes means the Issuers and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
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SECTION 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
1. a term has the meaning assigned to it;
2. an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
3. "or" is not exclusive;
4. words in the singular include the plural, and in the
plural include the singular;
5. "including" means "including without limitation";
6. provisions apply to successive events and transactions;
and
7. references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM OF NOTES.
(a) Form of Notes. Notes of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution or in one
or more Supplemental Indentures hereto, in each case with appropriate notations,
legends or endorsements required by law, stock exchange rule or usage. Notes
issued in global form shall include the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto. Notes
issued in definitive form shall be substantially in the form of a Global Note,
but shall not include the Global Note Legend or "Schedule of Exchanges of
Interests in the Global Note." Each Global Note shall represent such of the
outstanding Notes of a series as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes of such series from time
to time endorsed thereon and that the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount, or principal amount at
Maturity, as applicable, of outstanding Notes of a series represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by
Section 2.06 hereof.
Each Note shall be dated the date of its authentication. Unless
otherwise specified in an indenture supplemental hereto with respect to any
series of Notes, the Notes shall be in denominations of $1,000 and integral
multiples thereof. The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
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However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Form of Trustee's Certificate of Authentication. The form of
Trustee's certificate of authentication shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
as Trustee,
By:
Authorized Signatory
Dated:
(c) Euroclear and Cedel Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel.
SECTION 2.02. TERMS OF NOTES.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited. The Notes issued
under this Indenture shall rank pari passu with all other unsecured and
unsubordinated Indebtedness of the Issuers.
The Notes may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 2.03, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more Supplemental Indentures hereto, prior to the issuance of Notes of
any series, any or all of the following, as applicable, as may be determined
from time to time by the Issuers with respect to unissued Notes of the series
and set forth in such Notes of the series when issued from time to time:
(i) the designation and title of the Notes;
(ii) the aggregate principal amount, or principal amount
at Maturity, as applicable, of the Notes;
(iii) the percentage of the principal amount, or principal
amount at Maturity, as applicable, at which the Issuers will issue and
sell the Notes;
(iv) the date or dates on which the Notes will mature;
(v) the rate or rates per annum, if any, at which the
Notes will bear or accrete interest, or the method of determination of
the interest rate or rates;
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(vi) the times and places at which the interest, if any,
will be payable;
(vii) provisions for sinking, purchase or other analogous
funds, if any;
(viii) whether the Notes will be issued as Original Issue
Discount Notes;
(ix) the date or dates or particular events, if any, after
which the Issuers may redeem the Notes at their option, as well as the
redemption price or prices;
(x) the date or dates or particular events, if any, after
which the Issuers must offer to repurchase the Notes from Holders, as
well as the repurchase price or prices;
(xi) the date or the dates, if any, after which the
Holders may convert the Notes into shares of Common Stock of the Company
and the terms for that conversion;
(xii) any transfer restrictions, procedures or other
requirements; and
(xiii) any other material terms of, including any
covenants or defined terms applicable to, the Notes.
All Notes of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 2.03) and set forth in such Officers' Certificate or in any
Supplemental Indenture hereto. Not all Notes of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Notes of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) At least one Officer of each Issuer shall sign the Notes for
each Issuer by manual or facsimile signature. The Issuers' respective seals may
be reproduced on the Notes and may be in facsimile form; provided, however, that
no seal shall be required to be reproduced on the Notes.
(b) If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The Trustee's manual signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(d) At any time and from time to time following the execution of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication, and the Trustee shall, upon a written order of the
Issuers signed by at least one Officer of each Issuer (an "Authentication
Order"), authenticate Notes for original issue up to the aggregate principal
amount or principal amount at Maturity, as applicable, stated in the Notes. The
aggregate principal amount or principal amount at Maturity, as applicable, of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
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(e) The Trustee may appoint an Authenticating Agent acceptable to
the Issuers to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as Registrar or Paying Agent to deal
with Holders or an Affiliate of the Issuers.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
(a) The Issuers shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Issuers may change
any Paying Agent or Registrar without notice to any Holder. The Issuers shall
notify the Trustee in writing of the name and address of any Paying Agent or
Registrar not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Issuers or any Subsidiary of an Issuer may act as Paying Agent or
Registrar.
(b) The Issuers initially appoint The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Issuers initially appoint the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any default by the Issuers in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Issuers at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than an Issuer or a Subsidiary of an
Issuer) shall have no further liability for the money. If the Issuers or a
Subsidiary of an Issuer acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to an
Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders of Notes and the Issuers shall otherwise
comply with TIA Section 312(a).
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SECTION 2.07. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Note. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Issuers for Definitive Notes if (i) the Issuers
deliver to the Trustee notice from the Depositary that it is unwilling or unable
to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Issuers within 120 days after the date of such notice from
the Depositary or (ii) the Issuers in their sole discretion determine that the
Global Note (in whole but not in part) should be exchanged for Definitive Notes
and deliver a written notice to such effect to the Trustee. Upon the occurrence
of either of the preceding events in (i) or (ii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.07(a),
although beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. In connection with all transfers
and exchanges of beneficial interests in a Global Note, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.07(g) hereof.
(c) Transfer or Exchange of Beneficial Interests in Global Notes
for Definitive Notes. Global Notes and beneficial interests therein shall be
exchangeable for Definitive Notes if (i) the Depositary (x) notifies the Issuers
that it is unwilling or unable to continue as depositary for the Global Note and
the Issuers thereupon fail to appoint a successor depositary or (y) has ceased
to be a clearing agency registered under the Exchange Act and the Issuers fail
to appoint a successor, (ii) the Issuers, at their option, notify the Trustee in
writing that they elect to cause the issuance of the Definitive Note or (iii)
there shall have occurred and be continuing a Default with respect to the Notes.
In all cases, a Definitive Note delivered in exchange for any Global Note or
beneficial interests therein shall be registered in the names, and issued in any
approved denominations, requested by or on behalf of the depositary (in
accordance with the Applicable Procedures). In such event, the Trustee shall
cause the Global Note to be canceled accordingly pursuant to Section 2.12
hereof, and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
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the appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.07(c) shall be registered in such
name or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Note to the Persons in whose names such Note are
so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. A Holder of a Definitive Note may exchange such Note
for a beneficial interest in a Global Note or transfer such Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the Global
Notes. If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to this Section 2.07(d) at a time when a Global
Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.03 hereof, the Trustee shall
authenticate one or more Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Note so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Note. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Note duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the provisions of this Section 2.07.
A Holder of Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of a Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the Definitive
Note pursuant to the instructions from the Holder thereof.
(f) Legends. The following legend shall appear on the face of all
Global Notes issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(g) Cancellation or Adjustment of Global Note. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.12 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person
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who shall take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who shall take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Issuers shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Issuers' order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuers may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.11, 3.06, and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Note during a period
beginning at the opening of business 15 days before the day of any
selection of Note for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (c) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes, and
none of the Trustee, any Agent or the Issuers shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.03
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
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SECTION 2.08. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or the
Issuers and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuers shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee,
any agent of the Trustee from any loss that any of them may suffer if a Note is
replaced. The Issuers may charge for their expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the
Issuers and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes of that series duly issued hereunder.
SECTION 2.09. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.10 hereof, or as otherwise provided in a Supplemental Indenture, Notes
do not cease to be outstanding because the Issuers or an Affiliate of the
Issuers hold Notes.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
(d) If the Paying Agent (other than the Issuers, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.10. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuers, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.11. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Issuers consider
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without
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unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate
Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.12. CANCELLATION.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee upon direction by the Issuers and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuers. The Issuers may not issue new
Notes to replace Notes that they have paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the Notes,
they shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Issuers shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Issuers shall fix or cause to be fixed
each such special record date and payment date; provided, however, that no such
special record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 10 days before the special record date,
the Issuers (or, upon the written request of the Issuers, the Trustee in the
name and at the expense of the Issuers) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
SECTION 2.14. CUSIP NUMBERS.
The Issuers in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuers will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuers elect to redeem Notes of a series pursuant to the
terms of the Notes of such series, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of the applicable Supplemental
Indenture governing such series pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the principal amount of Notes to be redeemed and
(iv) the redemption price.
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SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes of a series are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes of such series to be redeemed or purchased among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any other customary
method of the Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Issuers in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Issuers shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Note in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Note or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
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At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' names and at their expense; provided, however, that
the Issuers shall have delivered to the Trustee, at least 45 days, or such
shorter period allowed by the Trustee, prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or one Business Day prior to the redemption date, the Issuers
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Issuers to comply with the preceding
paragraph, interest shall be paid on the unpaid principal from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Note and
in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuers
shall issue and, upon the Issuers; written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
(a) The Issuers shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Issuers
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuers in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
(b) The Issuers shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then
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applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuers shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuers in respect of the Notes and this Indenture may be
served. The Issuers shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
(b) The Issuers may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuers of their obligations to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuers shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
(c) The Issuers hereby designate the Corporate Trust Office of
the Trustee as one such office or agency of the Issuers in accordance with
Section 2.04.
SECTION 4.03. REPORTS.
(a) Whether or not the Issuers are required to do so by the rules
and regulations of the SEC, so long as any Notes of a series are outstanding,
the Issuers shall furnish to the Holders of the Notes (a) all quarterly and
annual financial and other information with respect to the Issuers and their
consolidated Subsidiaries that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Issuers were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Issuers and their consolidated Subsidiaries, showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Issuers and their Restricted Subsidiaries separate from the
financial information and results of operations of the Unrestricted Subsidiaries
of the Issuers and, with respect to the annual information only, a report
thereon by the Issuers' certified independent accountants, and (b) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Issuers were required to file such reports.
(b) After the effectiveness of the Shelf Registration Statement,
whether or not required by the rules and regulations of the SEC, the Issuers
shall file a copy of all of the information and reports required to be delivered
pursuant to clause (a) of this Section 4.03 with the SEC for public
availability, unless the SEC shall not accept such a filing, and from and after
the date hereof shall make this information available to securities analysts and
prospective investors upon request. In addition, for so long as any Notes remain
outstanding, the Issuers shall file with the Trustee and the SEC (unless the SEC
shall not accept such filing) the information required to be delivered pursuant
to clause (a) of this Section
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4.03 within the time periods specified in the SEC's rules and regulations and
furnish that information to Holders of the Notes, securities analysts and
prospective investors upon their request.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuers shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that
they have made a due diligence inquiry into their compliance during the prior
fiscal year with the Indenture and any indenture supplements with a view to
determining whether the Issuers have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the
Issuers have kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and are not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Issuers are taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuers are taking or propose to
take with respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Issuers' independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Issuers have violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Issuers shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Issuers are taking or propose to
take with respect thereto.
SECTION 4.05. TAXES.
The Issuers shall pay, and shall cause each of their Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Issuers covenant (to the extent that they may lawfully do so)
that they shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Issuers (to the extent
that they may lawfully do so) hereby expressly waive all benefit or advantage of
any such law, and covenant that they shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
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SECTION 4.07. RESTRICTIONS ON ACTIVITIES OF FINANCE SUB AND RELEASE
OF OBLIGATIONS.
Prior to the consummation of a Holding Company Reorganization,
neither Finance Sub nor any wholly owned subsidiary of Finance Sub formed solely
for the purpose of consummating the Holding Company Reorganization shall (1)
hold any material assets; (2) consolidate or merge with or into any other
Person, other than in connection with the Holding Company Reorganization; (3)
become liable or pay for any Indebtedness or other obligations; provided,
however, that Finance Sub may: (a) become liable for or pay for its obligations
under the indenture, the supplemental indentures and the notes; (b) become
liable for or pay for any judgments; and (c) be a co-obligor with respect to
Indebtedness if the Company is also an obligor of that Indebtedness and the net
proceeds of that Indebtedness are received by the Company or one or more of its
Restricted Subsidiaries other than Finance Sub; or (4) engage in any business
activities other than incident to maintaining Finance Sub's corporate existence
or consummating a Holding Company Reorganization.
Upon consummation of the Holding Company Reorganization, the
obligation of (I) Finance Sub with respect to the Notes will automatically be
extinguished and only the Company will continue as the sole obligor on the
Notes, if the Holding Company Reorganization is of the type contemplated by
clause (1) of the definition of Holding Company Reorganization, or (II) the
Company with respect to the Notes will automatically be extinguished and only
Finance Sub will continue as the sole obligor on the Notes, if the Holding
Company Reorganization is of the type contemplated by clauses (2) or (3) of the
definition of Holding Company Reorganization.
In the event that a Holding Company Reorganization is
consummated, the Trustee shall, at the request of either Issuer, enter into a
Supplemental Indenture to evidence the release of the Company or Finance Sub, as
the case may be, from its obligations on the Notes.
SECTION 4.08. CORPORATE EXISTENCE.
Subject to Article 5 hereof, each of the Issuers shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Issuers or any such Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Issuers and its Subsidiaries; provided, however,
that the Issuers shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of their
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuers and
their Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
Unless provided otherwise in a Supplemental Indenture, the
Company shall not consolidate or merge with or into another Person or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
Person unless (a) the Company is the surviving corporation of such consolidation
or merger or the lessor or transferor in such sale, conveyance, lease or
transfer; (b) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer, lease,
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conveyance or other disposition shall have been made (the "Successor Company")
(i) is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, and (ii) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory thereto, all the obligations of the Company under the
Notes and this Indenture pursuant to a Supplemental Indenture, including all
obligations of the Company for due and punctual payment of principal of,
premium, if any, and interest on all Notes, and the performance and observance
of all covenants contained herein or in any indenture supplemental hereto; (c)
immediately after such transaction, no Default has occurred or is continuing;
and (d) the Company or such Person shall have delivered to the Trustee and
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or sale, transfer, lease or conveyance and such
supplemental indenture comply with this Article 5 and that all conditions
precedent herein for relating to such transaction have been satisfied.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture, any
indenture supplemental hereto and the Notes, with the same effect as if such
successor Person had been named as the Company herein and therein.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless provided otherwise in an indenture supplemental hereto,
the each of the following shall constitute an "Event of Default":
(a) the Issuers default in the payment when due of interest on
the Notes, whether or not prohibited by Section 4.01, and such default continues
for a period of 60 days;
(b) the Issuers default in the payment when due of principal of
or premium, if any, on the Notes, whether or not prohibited by Section 4.01;
(c) the Issuers default in the deposit of any sinking fund
payment when and as due pursuant to the terms of the Notes and any Supplemental
Indenture hereto;
(d) default in the performance, or breach, of any covenant or
warranty of the Issuers or the Guarantor in this Indenture, and continuance of
such default or breach for 60 days after notice to the Issuers by the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Note of the affected series;
(e) an Issuer or any Significant Subsidiary of an Issuer or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
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(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Issuers or any of their
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;
or
(ii) appoints a Custodian of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of any Issuer or any
Significant Subsidiary of an Issuer or any group of Restricted
Subsidiaries that, taken as a whole, would constitute such a Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive
days; or
(g) any other Event of Default provided with respect to Notes of
that series.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified
in clause (e) or (f) of Section 6.01 hereof with respect to the Issuers), occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes may declare the principal amount or, the Notes of that series are Original
Issue Discount Notes, such portion of the principal amount as may be specified
in the terms of that series, of all the Notes of that series to be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (e) or (f) of Section 6.01 hereof occurs with respect to the
Issuers, all outstanding Notes shall be due and payable immediately without
further action or notice. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium, if any,
that has become due solely because of the acceleration) have been cured or
waived.
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SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount, or principal amount at Maturity, as applicable, of the Notes of any
series then outstanding by notice to the Trustee may, on behalf of the Holders
of all of the Notes, waive an existing Default or Event of Default and its
consequences hereunder, except (a) a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on, the Notes, or
(b) in respect of a covenant or provision which under this Indenture or any
indenture supplemental hereto cannot be modified or amended without the consent
of the Holders of all or more than a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Notwithstanding anything to the contrary in this Article 6, at
any time after a declaration of acceleration with respect to Notes of any series
has been made, the Holders of a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of that series, or
of all series, as the case may be, by written notice to the Issuers and the
Trustee, may rescind and annul the declaration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. Such a rescission
will not affect any subsequent default or impair any right consequent to a
subsequent rescission.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount, or principal amount at
Maturity, as applicable, of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in personal
liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Note only if:
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(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount, or principal
amount at Maturity, as applicable, of the then outstanding Notes of that series
make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of 10% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal of, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Issuers for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), their creditors or their property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and
Third: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount, or principal amount at Maturity, as applicable, of the then
outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e) and (f) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties hereunder. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document. The
Trustee may consult with nationally recognized counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and reliance thereon, provided, however
that this provision shall not protect the Trustee from liability for its own
gross negligence or willful misconduct.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Issuers' use of the proceeds from the Notes or
any money paid to the Issuers or upon the Issuers' direction under any provision
of this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note of that series, or in the payment of any sinking
fund installment with respect to the Notes of that series, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of the
Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SECURITIES.
Within 120 days after each December 31, beginning with December
31, 2000, and for so long as Notes remain outstanding, the Trustee shall mail to
the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
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A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Issuers and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Issuers shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for the Trustee's acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in accordance with this Indenture in addition to
the compensation for the Trustee's services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuers shall indemnify the Trustee (in its capacity as
Trustee) against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of this
trust and the Trustee's duties under this Indenture, including the reasonable
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense or a portion thereof may be
attributable to its negligence, willful misconduct, recklessness or bad faith.
The Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the
Issuers of their obligations hereunder. The Issuers shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Issuers shall pay the reasonable fees and expenses of such
counsel. The Issuers need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld. The Issuers need not reimburse
any expense or indemnify against any loss liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence, recklessness
or bad faith.
The obligations of the Issuers under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers. The Holders of Notes
of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may remove the Trustee by so notifying
the Trustee and the Issuers in writing. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a receiver, a custodian or a public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of Notes of at least 10% in principal amount, or principal amount
at Maturity, as applicable, of the then outstanding Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. Subject to the Lien provided for in Section
7.07 hereof, the retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee; provided, however, that all sums owing
to the Trustee hereunder shall have been paid. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Issuers' obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or
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state authorities and that has a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUERS.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Issuers may, at the option of their Boards of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes of a series upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes of a series on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes of such series, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all of their other obligations under such Notes, this Indenture and
any Supplemental Indenture hereto (and the Trustee, on demand of and at the
expense of the Issuers, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder and thereunder: (a) the rights of Holders of
outstanding Notes to receive (i) solely from the trust fund described in Section
8.04 hereof and in an indenture supplemental hereto, and as more fully set forth
in such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, and (ii) shares of Common
Stock or other securities from the Issuers upon conversion of any convertible
Notes issued hereunder and thereunder; (b) the Issuers' obligations with respect
to such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and thereunder and the
Issuers' obligations in connection therewith and (d) this Article Eight and any
corresponding defeasance provisions contained in any indenture supplemental
hereto. Subject to compliance with this Article Eight, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their obligations under the covenants contained in sections hereof and of
any
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Supplemental Indenture hereto, and the operation of Section 5.01(d) hereof, with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Issuers may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes of a series. In
order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, (i) cash in United States dollars, (ii)
non-callable Government Obligations, or (c) a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes of that series on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and any
mandatory sinking fund payments or analogous payments applicable to the
outstanding Notes on the day on which those payments are due and payable,
provided that the Issuers must specify whether the Notes are being defeased to
Maturity or to a particular redemption date and must deliver to the Trustee
irrevocable instructions to apply the proceeds of any Government Obligations to
the payments required to be made to those Notes;
(b) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture and
any material agreement or instrument to which the Issuers or any of their
Restricted Subsidiaries is a party or by which the Issuers or any of their
Restricted Subsidiaries is bound;
(c) such Legal Defeasance or Covenant Defeasance shall comply
with any additional or substitute terms, conditions or limitations set forth in
any Supplemental Indenture hereto;
(d) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes
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and this Indenture, to the payment, either directly or through any Paying Agent
(including an Issuer acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Obligations held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO THE ISSUERS.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, premium, if
any, or interest on any Notes and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Notes shall thereafter, as an
unsecured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuers cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Issuers.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Obligations in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuers' obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; provided, however, that, if the Issuers make
any payment of principal of, premium, if any, or interest on any Notes following
the reinstatement of their obligations, the Issuers shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Issuers and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note to:
(a) cure any ambiguity, defect or inconsistency;
(b) effect or maintain the qualification of the
indentures under the Trust Indenture Act;
(c) secure any Notes;
(d) add covenants for the protection of the Holders of
Notes;
(e) establish the forms or terms of Notes of any series;
(f) make any other change that does not adversely affect
in any material respect the rights under such indenture of the Holders of Notes
thereunder;
(g) add a guarantee of the Issuers' payment obligations
under the Indentures by a subsidiary or other party;
(h) evidence the acceptance of appointment by a successor
trustee;
(i) evidence and effect the Holding Company
Reorganization; and
(j) evidence the succession of another person to an Issuer
and the assumption by any such successor of their obligations in accordance with
the Indentures and the Notes.
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02(b) hereof, the Trustee shall join with the
Issuers in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SECURITIES.
Except as provided below in this Section 9.02, the Issuers and
the Trustee may amend or supplement this Indenture (including Section 3.09, 4.10
and 4.14 hereof) and the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Notes of any
Series (including additional Notes, if any, of such series) then outstanding
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than
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a Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount, or principal amount at Maturity, as applicable, of
the then outstanding Notes of such Series (including additional Notes, if any,
of such series) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Upon the request of the Issuers accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly 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
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount, or principal amount at
Maturity, as applicable, of the Notes (including additional Notes, if any, of
such series) then outstanding voting as a single class may waive compliance in a
particular instance by the Issuers with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount or the rate of interest
or any premium, if any, payable upon the redemption of any Note;
(iii) reduce the accreted amount of an Original Issue
Discount Note that would be due and payable upon a declaration of
acceleration of the Maturity of the Notes under the Indentures or the
amount due at Maturity;
(iv) adversely affect, after the event giving rise to any
right of repayment occurs, any right of repayment at the option of any
Holder of any Note, or change any place of payment described in the
Indentures where any Note or any premium, if any, or the interest
thereon is payable;
(v) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity of the Notes, or, in the
case of repayment at the option of the holder, on or after the repayment
date;
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(vi) adversely affect any right to convert or exchange any
Notes as may be provided under the Indentures; or
(vii) reduce the percentage in principal amount of the
outstanding Notes of any series, the consent of whose holders is
required for any such supplemental indenture, for any waiver of
compliance with provisions of the Indentures or defaults thereunder and
their consequences provided for in the Indentures.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Notes, or which modifies the
rights of the Holders of Notes of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Notes of any other series. Any such supplemental indenture
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture, or modifying in any manner the rights of the
Holders of Notes of such series, shall not affect the rights under this
Indenture of the Holders of Notes of any other series.
It shall not be necessary for any act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Notes thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or
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immunities of the Trustee. The Issuers may not sign an amendment or supplemental
indenture until the Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to
the documents required by Section 10.04 hereof, an Officer's Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Issuers or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next-day delivery, to the
others' address:
If to the Issuers:
Metricom, Inc. or
Metricom Finance, Inc. c/o Metricom, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ Godward LLP
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trustee:
Bank One Trust Company, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders; provided, however,
that notices to the Trustee shall be deemed delivered upon receipt.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, they
shall mail a copy to the Trustee and each Agent at the same time; provided,
however, that notices to the Trustee shall be deemed delivered upon receipt.
SECTION 10.03. COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF
SECURITIES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to
take any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
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(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
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 satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Issuers or the Guarantor, as such, shall have
any liability for any obligations of the Issuers or any Guarantor under the
Notes, the Guarantees, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes and the Guarantees. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuers or their Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of the Issuers in this Indenture and the Notes
shall bind their successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 10.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
ARTICLE 11.
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE.
This Indenture shall, upon a written request or order signed by
an Officer and delivered to the Trustee, cease to be of further effect with
respect to any series of Notes, except as to any surviving rights of
registration of transfer or exchange or conversion of Notes of that series
expressly provided for, and the Trustee will be required to execute proper
instruments acknowledging satisfaction and discharge of such indenture as to
that series when:
(a) either (i) all Notes of that series previously authenticated
and delivered, other than (A) Notes that have been destroyed, lost or stolen and
which have been replaced or paid, as provided in the Indentures, and (B) Notes
for which money sufficient to make all payment on the Notes has previously been
deposited in trust with the Trustee or any Paying Agent or segregated and held
in trust by us with any remaining amounts to thereafter be repaid to us, as
provided in the Indentures, have been delivered to the trustee for cancellation;
or (ii) all Notes, other than any convertible Notes, of such series (A) have
become due and payable, (B) will become due and payable at their Stated Maturity
within one year, or (C) if redeemable at the option of the Issuers, are to be
called for redemption within one year under arrangements reasonably satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at expense of the Issuers,
(b) the Issuers has paid or caused to be paid all other sums
payable under the Notes by the Issuers; and
(c) the Issuers have delivered an Officers' Certificate and an
Opinion of Counsel to the Trustee, each stating that all conditions precedent
provided for relating to the satisfaction and discharge of the Indentures as to
such series have been satisfied.
SECTION 11.02. APPLICATION OF TRUST MONEY.
All money to be deposited with the Trustee pursuant to Section
11.01 shall be irrevocably deposited with the Trustee as trust funds in trust an
amount of money or Government Obligations sufficient to pay and discharge the
entire Indebtedness on those Notes not previously delivered to the Trustee for
cancellation, including all principal of and any premium, if any, and
installments of interest to
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the date of such deposit in the case of Notes which have become due and payable
or to the Stated Maturity or redemption date of the Notes, as the case may be.
ARTICLE 12.
SECURITY GUARANTEES
SECTION 12.01. GUARANTEE.
Subject to this Article 12, the Company hereby unconditionally
guarantees the obligations of Finance Sub under the Notes, this Indenture and
any Supplemental Indenture with respect to the matters set forth below to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Issuers hereunder or
thereunder, that: (a) the principal of premium, if any, and interest on the
Notes shall be promptly paid in full when due, whether at Maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Issuers to the Holders or the Trustee hereunder or thereunder shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration pursuant to Section 6.02 hereof or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantor shall be jointly
and severally obligated to pay the same immediately. The Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection. The Note
Guarantee shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Guarantor.
The Guarantor hereby agrees that its obligations with regard to
this Note Guarantee shall be unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Issuers under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Issuers or any other obligor with respect to this
Indenture, the Notes or the obligations of the Issuers under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of the Guarantor. The Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require any of the Trustee, the Holders or the Issuers (each a
"Benefited Party"), as a condition of payment or performance by such Guarantor,
to (1) proceed against the Issuers or any other Person, (2) proceed against or
exhaust any security held from the Issuers or any other Person, (3) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Benefited Party in favor of the Issuers or any other Person, or (4)
pursue any other remedy in the power of any Benefited Party whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Issuers including any defense based on or arising out of
the lack of validity or the unenforceability of the obligations under the Note
Guarantee or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Issuers from any cause other than payment in
full of the obligations under the Note Guarantees; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more burdensome than that of
the principal; (d) any defense based upon any Benefited Party's errors or
omissions in the administration of the obligations under the Note Guarantees,
except behavior which amounts to bad faith; (e)(1) any principles or provisions
of law, statutory or otherwise, which are or might be in conflict with the terms
of the Note Guarantees and any legal or equitable discharge of such Guarantor's
obligations hereunder, (2)
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the benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and
counterclaims and (4) promptness, diligence and any requirement that any
Benefited Party protect, secure, perfect or insure any security interest or lien
or any property subject thereto; (f) notices, demands, presentations, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of the Note Guarantee, notices of default under the Notes
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the obligations under the Note Guarantee or any
agreement related thereto, and notices of any extension of credit to the Issuers
and any right to consent to any thereof; (g) to the extent permitted under
applicable law, the benefits of any "One Action" rule and (h) any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms of
the Note Guarantee. The Guarantor hereby covenants that its Note Guarantee shall
not be discharged except by complete performance of the obligations contained in
its Note Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuers or
the Guarantor, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
The Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
The Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantor
for the purpose of this Note Guarantee.
SECTION 12.02. LIMITATION ON GUARANTOR LIABILITY.
The Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantor hereby irrevocably agree that the
obligations of such Guarantor under this Article 12 shall be limited to the
maximum amount as shall, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, result in the obligations of such Guarantor under its Note Guarantee
not constituting a fraudulent transfer or conveyance.
SECTION 12.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 12.01 hereof,
the Guarantor hereby agrees that a notation of such Note Guarantee shall be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by one of its Officers.
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Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantor.
SECTION 12.04. RELEASE FOLLOWING HOLDING COMPANY REORGANIZATION.
Upon the completion of a Holding Company Reorganization, the
Guarantee automatically, and without further notice to or action by the Holders
of the Notes, will be released entirely and shall cease to be of any force and
effect. After that time, all references in this Indenture or any Supplemental
Indenture to an obligor of the Notes will refer only to the holding company
being the surviving . In that event, the Trustee shall, at the request of either
the Company or Finance Sub, enter into a Supplemental Indenture to evidence the
release of the Guarantee.
ARTICLE 13.
SUBORDINATION
SECTION 13.01. AGREEMENT TO SUBORDINATE.
The Issuer agree, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by, and the payment of principal, premium and
interest on, the Notes is subordinated in right of payment, to the extent and in
the manner provided in this Article 13, to the prior payment in full of all
Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Indebtedness.
SECTION 13.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
In the event: (a) of any insolvency or bankruptcy proceedings, or
any receivership, liquidation, reorganization or other similar proceedings in
respect of us or a substantial part of their property, or (b) that (i) a default
occurs with respect to the payment of principal of, and any premium or interest
on, or other monetary amounts due and payable on any Senior Indebtedness or (ii)
there occurs an Event of Default, other than a Default in the payment of
principal, and any premium or interest, or other monetary amounts due and
payable, with respect to any Senior Indebtedness, permitting the Holder or
Holders of that Senior Indebtedness to accelerate the maturity of that Senior
Indebtedness, with notice or lapse of time, or both, and such Event of Default
continues beyond the period of grace, if any, in respect of that Default or
Event of Default, and the Default or Event of Default is not cured or waived or
ceases to exist; or (iii) the principal of and accrued interest on, or the
accreted amount of, the Notes is declared due and payable as a result of an
Event of Default of this Indenture and that declaration is not rescinded and
annulled as provided under this Indenture, then the Holders of all Senior
Indebtedness will be entitled to receive payment, in cash or cash equivalents,
of the full amount unpaid on that Senior Indebtedness first, or provision will
be made for that payment in money or money's worth, before the Holders of any of
the Notes are entitled to receive a payment on account of the principal of, and
any premium or interest on, the Indebtedness evidenced by such Notes.
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SECTION 13.03. DEFAULT ON SENIOR INDEBTEDNESS.
The Issuers may not pay principal, premium or interest with
respect to Notes of any series or make any deposit pursuant to the provisions
described under Article 8 and may not repurchase, redeem or otherwise retire any
Notes (collectively, "pay the Notes") if, at the time of such payment or
immediately after giving effect thereto, there shall exist with respect to any
Senior Indebtedness of the Issuers or any agreement pursuant to which any Senior
Indebtedness is issued, any default in the payment of principal, premium and
interest with respect of such Senior Indebtedness beyond any applicable grace
period thereto.
The Issuers shall give prompt written notice to the Trustee of
any default in the payment of any Senior Indebtedness or any acceleration under
any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued. Failure to give such notice shall not affect
the subordination of the Notes to the Senior Indebtedness or the application of
the other provisions provided in this Article 13.
SECTION 13.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of a Default, the Issuers
shall promptly notify holders of Senior Indebtedness of the acceleration.
SECTION 13.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives or is holding, or any Holder
receives, any payment of any principal, premium and interest with respect to the
Notes at a time when the Trustee or such Holder, as applicable, has actual
knowledge (in the case of the Trustee as described in Section 13.11 hereof),
that such payment is prohibited by Section 13.02 or 13.03 hereof, such payment
shall be held by the Trustee or such Holder, in trust for the benefit of, and
shall be paid forthwith over and delivered to, the holders of Senior
Indebtedness as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all obligations with respect to the Senior Indebtedness remaining
unpaid to the extent necessary to pay such obligations in full in accordance
with their terms, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall mistakenly pay over or
distribute to or on behalf of Holders or the Issuers or any other Person money
or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 13, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
SECTION 13.06. NOTICE BY THE ISSUERS.
The Issuers shall promptly notify the Trustee and the Paying Agent of
any facts known to the Issuers that would cause a payment of any obligations
with respect to the Notes to violate this Article 13, but failure to give such
notice shall not affect the subordination of the Notes to the Senior
Indebtedness as provided in this Article 13.
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SECTION 13.07. SUBROGATION.
After all Senior Indebtedness is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article to
holders of Senior Indebtedness that otherwise would have been made to Holders is
not, as between the Issuers and Holders, a payment by the Issuers on the Notes.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 13 shall have been applied,
pursuant to the provisions of this Article 13, to the payment of all amounts
payable under the Senior Indebtedness, then and in such case the Holders shall
be entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of such
Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full; provided,
however, that such payments or distributions shall be paid first pro rata to
Holders that previously paid amounts then pro rata to all Holders.
SECTION 13.08. RELATIVE RIGHTS.
This Article 13 defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Issuers and Holders, the obligations
of the Issuers, which are absolute and unconditional, to pay principal, premium
and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Issuers other than their rights in relation to holders of Senior Indebtedness;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders and owners
of Senior Indebtedness to receive distributions and payments otherwise payable
to Holders.
If the Issuers fail because of this Article 13 to pay principal,
premium and interest on a Note on the due date, the failure is still a Default.
SECTION 13.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE ISSUERS.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Issuers or any Holder or by the failure of the
Issuers or any Holder to comply with this Indenture.
SECTION 13.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of the Issuers
referred to in this Article 13, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent
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jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Issuers, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13.
SECTION 13.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 13 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless an authorized Officer of the Trustee shall
have received at its office at least two Business Days prior to the due date of
such payment written notice of facts that would cause the payment of any
principal, premium and interest with respect to the Notes to violate this
Article 13. Only the Issuers or a Representative may give the notice. Nothing in
this Article 13 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
SECTION 13.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 13, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, a Representative of Designated Senior Indebtedness is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Notes and the Trustee shall have no liability therefor.
SECTION 13.13. PAYMENT.
A payment with respect to a Note or with respect to principal of
or interest on a Note shall include payment of principal, premium and interest
on any Notes, any payment on account of any mandatory or optional repurchase or
redemption of any Notes and any payment or recovery on any claim (whether for
rescission or damages and whether based on contract, tort, duty imposed by law,
or any other theory of liability) relating to or arising out of the offer, sale
or purchase of any Notes provided that any such payment, other payment or
recovery (i) not prohibited pursuant to this Article 13 at the time actually
made shall not be subject to any recovery by any holder of Senior Indebtedness
or Representative therefor or other Person pursuant to this Article 13 at any
time thereafter (unless such payment is a voluntary prepayment on the Securities
made at the time a Default exists under this Indenture) and (ii) made by or from
any Person other than the Issuers shall not be subject to any recovery by any
holder of Senior Indebtedness or Representative therefor or other Person
pursuant to this Article 13 at any time thereafter except to the extent such
Person recovers any such amount paid from the Issuers, whether pursuant to
rights of indemnity, rescission or otherwise.
[Signatures on following page]
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SIGNATURES
Dated as of December 29, 1999
METRICOM, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
METRICOM FINANCE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page for Subordinated Indenture]
51
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE...............................1
Section 1.01. Definitions....................................................1
Section 1.02. Other Definitions..............................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act..............8
Section 1.04. Rules of Construction..........................................8
ARTICLE 2. THE SECURITIES...........................................................9
Section 2.01. Form of Securities.............................................9
Section 2.02. Terms of Securities...........................................10
Section 2.03. Execution, Authentication and Delivery........................11
Section 2.04. Registrar and Paying Agent....................................12
Section 2.05. Paying Agent to Hold Money in Trust...........................12
Section 2.06. Holder Lists..................................................12
Section 2.07. Transfer and Exchange.........................................13
Section 2.08. Replacement Securities........................................16
Section 2.09. Outstanding Securities........................................16
Section 2.10. Treasury Securities...........................................16
Section 2.11. Temporary Securities..........................................16
Section 2.12. Cancellation..................................................17
Section 2.13. Defaulted Interest............................................17
Section 2.14. CUSIP Numbers.................................................17
ARTICLE 3. REDEMPTION AND PREPAYMENT...............................................17
Section 3.01. Notices to Trustee............................................17
Section 3.02. Selection of Securities to Be Redeemed........................18
Section 3.03. Notice of Redemption..........................................18
Section 3.04. Effect of Notice of Redemption................................19
Section 3.05. Deposit of Redemption Price...................................19
Section 3.06. Notes Redeemed in Part........................................19
ARTICLE 4. COVENANTS...............................................................19
Section 4.01. Payment of Notes..............................................19
Section 4.02. Maintenance of Office or Agency...............................20
Section 4.03. Reports.......................................................20
Section 4.04. Compliance Certificate........................................21
Section 4.05. Taxes.........................................................21
Section 4.06. Stay, Extension and Usury Laws................................21
Section 4.07. Restrictions on Activities of Finance Sub.....................22
Section 4.08. Corporate Existence...........................................22
ARTICLE 5. SUCCESSORS..............................................................22
Section 5.01. Merger, Consolidation, or Sale of Assets......................22
Section 5.02. Successor Corporation Substituted.............................23
ARTICLE 6. DEFAULTS AND REMEDIES...................................................23
Section 6.01. Events of Default.............................................23
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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Section 6.02. Acceleration..................................................24
Section 6.03. Other Remedies................................................25
Section 6.04. Waiver of Past Defaults.......................................25
Section 6.05. Control by Majority...........................................25
Section 6.06. Limitation on Suits...........................................25
Section 6.07. Rights of Holders of Securities to Receive Payment............26
Section 6.08. Collection Suit by Trustee....................................26
Section 6.09. Trustee May File Proofs of Claim..............................26
Section 6.10. Priorities....................................................27
Section 6.11. Undertaking for Costs.........................................27
ARTICLE 7. TRUSTEE.................................................................27
Section 7.01. Duties of Trustee.............................................27
Section 7.02. Rights of Trustee.............................................28
Section 7.03. Individual Rights of Trustee..................................29
Section 7.04. Trustee's Disclaimer..........................................29
Section 7.05. Notice of Defaults............................................29
Section 7.06. Reports by Trustee to Holders of the Securities...............29
Section 7.07. Compensation and Indemnity....................................30
Section 7.08. Replacement of Trustee........................................30
Section 7.09. Successor Trustee by Merger, etc..............................31
Section 7.10. Eligibility; Disqualification.................................31
Section 7.11. Preferential Collection of Claims Against the Issuers.........32
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................31
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance......32
Section 8.02. Legal Defeasance and Discharge................................32
Section 8.03. Covenant Defeasance...........................................32
Section 8.04. Conditions to Legal or Covenant Defeasance....................33
Section 8.05. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.........................33
Section 8.06. Repayment to the Issuers......................................34
Section 8.07. Reinstatement.................................................34
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER........................................35
Section 9.01. Without Consent of Holders of Notes...........................35
Section 9.02. With Consent of Holders of Securities.........................35
Section 9.03. Compliance with Trust Indenture Act...........................37
Section 9.04. Revocation and Effect of Consents.............................37
Section 9.05. Notation on or Exchange of Securities.........................37
Section 9.06. Trustee to Sign Amendments, etc...............................37
ARTICLE 10. MISCELLANEOUS...........................................................37
Section 10.01. Trust Indenture Act Controls.................................38
Section 10.02. Notices......................................................38
Section 10.03. Communication by Holders of Securities with Other Holders of
Securities...................................................39
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Section 10.04. Certificate and Opinion as to Conditions Precedent...........39
Section 10.05. Statements Required in Certificate or Opinion................39
Section 10.06. Rules by Trustee and Agents..................................39
Section 10.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.................................................40
Section 10.08. Governing Law................................................40
Section 10.09. No Adverse Interpretation of Other Agreements................40
Section 10.10. Successors...................................................40
Section 10.11. Severability.................................................40
Section 10.12. Counterpart Originals........................................41
Section 10.13. Table of Contents, Headings, etc.............................41
ARTICLE 11. SATISFACTION AND DISCHARGE..............................................41
Section 11.01. Satisfaction and Discharge...................................41
Section 11.02. Application of Trust Money...................................41
ARTICLE 12. SECURITY GUARANTEES.....................................................41
Section 12.01. Guarantee....................................................42
Section 12.02. Limitation on Guarantor Liability............................43
Section 12.03. Execution and Delivery of Note Guarantee.....................43
Section 12.04. Release Following Holding Company Reorganization.............44
ARTICLE 13. SUBORDINATION...........................................................44
Section 13.01. Agreement to Subordinate.....................................44
Section 13.02. Liquidation; Dissolution; Bankruptcy.........................44
Section 13.03. Default On Senior Indebtedness...............................45
Section 13.04. Acceleration of Notes........................................45
Section 13.05. When Distribution Must Be Paid Over..........................45
Section 13.06. Notice By The Issuers........................................45
Section 13.07. Subrogation..................................................46
Section 13.08. Relative Rights..............................................46
Section 13.09. Subordination May Not Be Impaired By The Issuers.............46
Section 13.10. Distribution Or Notice To Representative.....................46
Section 13.11. Rights Of Trustee And Paying Agent...........................47
Section 13.12. Authorization To Effect Subordination........................47
Section 13.13. Payment......................................................47
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