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EXHIBIT 4.8
BUDGET GROUP, INC.
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
------------------------------------
INDENTURE
JANUARY 15, 1998
------------------------------------
$80,000,000
7.0% CONVERTIBLE SUBORDINATED NOTES,
SERIES A, DUE 2007
$45,000,000
6.85% CONVERTIBLE SUBORDINATED NOTES,
SERIES B, DUE 2007
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions........................................................................... 2
SECTION 102. Compliance Certificates and Opinions..................................................13
SECTION 103. Form of Documents Delivered to Trustee................................................13
SECTION 104. Acts of Holders; Record Dates.........................................................14
SECTION 105. Notices, Etc., to Trustee and Company.................................................16
SECTION 106. Notice to Holders; Waiver.............................................................16
SECTION 107. Conflict with Trust Indenture Act.....................................................17
SECTION 108. Effect of Headings and Table of Contents..............................................17
SECTION 109. Successors and Assigns................................................................17
SECTION 110. Separability Clause...................................................................17
SECTION 111. Benefits of Indenture.................................................................17
SECTION 112. Governing Law.........................................................................17
SECTION 113. Legal Holidays........................................................................18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.......................................................................18
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.......................................................................19
SECTION 302. Denominations.........................................................................20
SECTION 303. Execution, Authentication, Delivery and Dating........................................20
SECTION 304. Temporary Securities..................................................................21
SECTION 305. Registration, Registration of Transfer and Exchange...................................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................23
SECTION 307. Payment of Interest; Interest Rights Preserved........................................24
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SECTION 308. Persons Deemed Owners.................................................................25
SECTION 309. Cancellation..........................................................................25
SECTION 310. Computation of Interest.............................................................. 26
SECTION 311. CUSIP Number..........................................................................26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...............................................26
SECTION 402. Application of Trust Money............................................................27
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.....................................................................27
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................29
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................30
SECTION 504. Trustee May File Proofs of Claim......................................................30
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...........................31
SECTION 506. Application of Money Collected........................................................31
SECTION 507. Limitation or Suits...................................................................32
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert...............................................................33
SECTION 509. Restoration of Rights and Remedies....................................................33
SECTION 510. Rights and Remedies Cumulative........................................................33
SECTION 511. Delay or Omission Not Waiver..........................................................33
SECTION 512. Control by Holders....................................................................34
SECTION 513. Waiver of Past Defaults...............................................................34
SECTION 514. Undertaking for Costs.................................................................34
SECTION 515. Waiver of Stay or Extension Laws......................................................35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities...................................................35
SECTION 602. Notice of Defaults....................................................................36
SECTION 603. Certain Rights of Trustee.............................................................36
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SECTION 604. Not Responsible for Recitals or Issuance of Securities................................37
SECTION 605. May Hold Securities...................................................................38
SECTION 606. Money Held in Trust...................................................................38
SECTION 607. Compensation and Reimbursement........................................................38
SECTION 608. Disqualification; Conflicting Interests...............................................39
SECTION 609. Corporate Trustee Required; Eligibility...............................................39
SECTION 610. Resignation and Removal; Appointment of Successor.....................................39
SECTION 611. Acceptance of Appointment by Successor................................................40
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...........................41
SECTION 613. Preferential Collection of Claims Against Company.....................................41
SECTION 614. Appointment of Authenticating Agent...................................................41
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............................43
SECTION 702. Preservation of Information; Communications to Holders................................43
SECTION 703. Reports by Trustee....................................................................44
SECTION 704. Reports by Company....................................................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..................................44
SECTION 802. Successor Substituted.................................................................45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders....................................45
SECTION 902. Supplemental Indentures with Consent of Holders.......................................46
SECTION 903. Execution of Supplemental Indentures..................................................47
SECTION 904. Effect of Supplemental Indentures.....................................................47
SECTION 905. Conformity with Trust Indenture Act...................................................47
SECTION 906. Reference in Securities to Supplemental Indentures....................................47
SECTION 907. Notice of Supplemental Indentures.....................................................48
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................................48
SECTION 1002. Maintenance of Office or Agency.......................................................48
SECTION 1003. Money for Security Payments to Be Held in Trust.......................................49
SECTION 1004. Statement by Officers as to Default...................................................50
SECTION 1005. Existence.............................................................................51
SECTION 1006. Maintenance of Properties.............................................................51
SECTION 1007. Keeping of Books; Payment of Taxes and Other Claims...................................51
SECTION 1008. Book-Entry System.....................................................................51
SECTION 1009. Waiver of Certain Covenants...........................................................52
SECTION 1010. Further Instruments and Acts..........................................................52
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption...................................................................52
SECTION 1102. Maintenance of Office or Agency.......................................................52
SECTION 1103. Election to Redeem; Notice to Trustee.................................................54
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.....................................54
SECTION 1105. Notice of Redemption..................................................................55
SECTION 1106. Deposit of Redemption Price...........................................................55
SECTION 1107. Securities Payable on Redemption Date.................................................56
SECTION 1108. Securities Redeemed in Part...........................................................56
SECTION 1109. Conversion Arrangement on Call for Redemption.........................................57
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinate to Senior Indebtedness.........................................57
SECTION 1202. No Payments in Certain Circumstances; Payment Over of Proceeds
Upon Dissolution, Etc.................................................................58
SECTION 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Securities..................60
SECTION 1204. [Reserved]............................................................................60
SECTION 1205. Payment Permitted if No Default.......................................................60
SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness...............................61
SECTION 1207. Provisions Solely to Define Relative Rights...........................................61
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SECTION 1208. Trustee to Effectuate Subordination...................................................61
SECTION 1209. No Waiver of Subordination Provisions.................................................61
SECTION 1210. Notice to Trustee.....................................................................62
SECTION 1211. Reliance on Judicial Order or Certificate of Liquidating Agent........................63
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness..............................63
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights...................................................................64
SECTION 1214. Article Applicable to Paying Agents...................................................64
SECTION 1215. Certain Conversions Deemed Payment....................................................64
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 1301. Conversion Privilege and Conversion Price.............................................65
SECTION 1302. Exercise of Conversion Privilege......................................................65
SECTION 1303. Fractions of Shares...................................................................67
SECTION 1304. Adjustment of Conversion Price........................................................67
SECTION 1305. Notice of Adjustments of Conversion Price.............................................71
SECTION 1306. Notice of Certain Corporate Action....................................................72
SECTION 1307. Company to Reserve Class A Shares.....................................................73
SECTION 1308. Taxes on Conversions..................................................................73
SECTION 1309. Covenant as to Class A Shares.........................................................73
SECTION 1310. Cancellation of Converted Securities..................................................74
SECTION 1311. Provision in Case of Consolidation, Merger or Sale of Assets..........................74
SECTION 1312. Responsibility of Trustee for Conversion Provisions...................................75
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL
SECTION 1401. Right to Require Repurchase...........................................................76
SECTION 1402. [Reserved]............................................................................76
SECTION 1403. Notices, Method of Exercising Repurchase Right, Etc...................................76
SECTION 1404. Certain Definitions...................................................................78
SECTION 1405. Consolidation, Merger, Etc............................................................78
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ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1501. Indenture and Securities Solely Corporate Obligations................79
Certain Sections of this Indenture relating to Section 310 through 318 of the
Trust Indenture Act of 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
----------- ---------
Section 310(a)(1) ................................................. 609
(a)(2) ................................................. 609
(a)(3) ................................................. Not Applicable
(a)(4) ................................................. Not Applicable
(b) ................................................. 608 610
Section 311(a) ................................................. 613
(b) ................................................. 613
Section 312(a) ................................................. 701 702(a)
(b) ................................................. 702(b)
(c) ................................................. 702(c)
Section 313(a) ................................................. 703(a)
(b) ................................................. 703(a)
(c) ................................................. 703(a)
(d) ................................................. 703(b)
Section 314(a) ................................................. 704
(b) ................................................. Not Applicable
(c)(1) ................................................. 102
(c)(2) ................................................. 102
(c)(3) ................................................. Not Applicable
(d) ................................................. Not Applicable
(e) ................................................. 102
Section 315(a) ................................................. 601
(b) ................................................. 602
(c) ................................................. 601
(d) ................................................. 601
(e) ................................................. 514
Section 316(a)(1)(A) ................................................. 512
(a)(1)(B) ................................................. 513
(a)(2) ................................................. Not Applicable
(b) ................................................. 508
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TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
(c) ................................................. 104
Section 317(a)(1) ................................................. 503
(a)(2) ................................................. 504
(b) ................................................. 1003
Section 318(a) ................................................. 107
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Note: This reconciliation and tie shall not, for any purpose be deemed
to be a part of the indenture.
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INDENTURE
INDENTURE, dated as of January 8, 1998, between BUDGET GROUP, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000, and The Chase Manhattan Bank, a
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has previously authorized and issued $80,000,000 aggregate
principal amount of its 7.0% Convertible Subordinated Notes, Series A, Due 2007
(the "Original Series A Notes") and $45,000,000 aggregate principal amount of
its 6.85% Convertible Subordinated Notes, Series B, Due 2007 (the "Original
Series B Notes") (the Original Series A Notes and the Original Series B Notes
being referred to herein collectively as the "Original Securities").
The Company is obligated to register notes that will be issued in
exchange for the Original Securities and the underlying Class A Common Stock,
par value $.01 per share ("Class A Shares"), of the Company issuable upon
conversion of such notes under the Securities Act of 1933 (the "Securities
Act"), and to exchange the Original Securities for convertible subordinated
notes in two series having the same maturity and other terms and bearing
interest at the same rate as the respective series of Original Securities and in
the respective aggregate principal amounts equal to the aggregate unpaid
principal amount of the Original Securities of each series.
In satisfaction of such obligation, the Company has duly authorized the
creation and issuance, upon receipt of all the issued and outstanding Original
Securities for exchange pursuant to the terms of the Note Purchase Agreements
(as defined herein) and cancellation of all such Original Securities, of
$80,000,000 of aggregate principal amount of its 7.0% Convertible Subordinated
Notes, Series A, Due 2007 (the "Series A Exchange Notes") and $45,000,000
aggregate principal amount of its 6.85% Convertible Subordinated Notes, Series
B, Due 2007 (the "Series B Exchange Notes") (the Series A Exchange Notes and the
Series B Exchange Notes being referred to herein collectively as the
"Securities"), in each case of substantially the tenor and amount of, and
evidencing the same indebtedness originally evidenced by, the Original Series A
Notes and the Original Series B Notes, respectively.
The Company has duly authorized the registration of the Securities and
the underlying Class A Shares under the Securities Act and to provide therefore
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with
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their and its terms, have been done. Further, all things necessary to duly
authorize the issuance of the Class A Shares of the Company issuable upon the
conversion of the Securities, and to duly reserve for issuance the number of
shares of Class A Shares issuable upon such conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person. Notwithstanding the
foregoing, in no event shall any Holder or any of its
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Affiliates be deemed to be an Affiliate of the Company solely by reason of the
ownership of the Securities or other securities of the Company (including
without limitation the Class A Shares acquired upon the conversion of the
Securities).
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
"As Converted Basis" means, when used in reference to Securities of
either series, whether at the time of a determination of the number of Class A
Shares or otherwise, that number of Class A Shares into which such Securities
may then be converted based upon the conversion rights of such Securities as
adjusted pursuant to Section 1304 of this Indenture.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means the board of directors of the Company or any
committee of directors lawfully exercising the relevant powers of said board of
directors.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, shall have been
delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a day
on which commercial banks are required or authorized by law to be closed in New
York, New York.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests (however designated) in stock issued by that
corporation.
"Capitalized Lease Obligations" means, with respect to any Person, all
outstanding obligations of such Person in respect of any rental obligation which
is required to be capitalized on the face of a balance sheet of such Person
under GAAP, taken at the capitalized amount thereof accounted for as liability
(net of interest expense) in accordance with GAAP.
"Change of Control" means such time as
(i) a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act), excluding any "person" or
"group" of which Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx,
or their controlled Affiliates, are a substantial part
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(and for such purpose Messrs. Xxxxxx, Xxxxxxx and Xxxxxxx, and their
controlled Affiliates, shall not be deemed to be a substantial part of
such person or group unless in the aggregate they own beneficially at
least 15.0% of the total then outstanding voting power of the Voting
Stock of the Company), (A) becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of more than 50% of the total
then outstanding voting power of the Voting Stock of the Company or (B)
has the right or the ability by voting right, contract or otherwise to
elect or designate for election a majority of the entire Board of
Directors;
(ii) (A) the Company consolidates with or merges into any
other Person or conveys, transfers, sells or leases all or
substantially all of its assets as an entirety to any Person or (B) any
Person merges into the Company, in either event pursuant to a
transaction in which Voting Stock of the Company representing more than
50% of the total voting power of the Company outstanding immediately
prior to the effectiveness thereof is reclassified or changed into or
exchanged for cash, securities or other property; provided that any
consolidation, merger, conveyance, transfer, sale or lease between the
Company and any of its Subsidiaries (including without limitation the
reincorporation of the Company in another jurisdiction) shall be
excluded from the operation of this clause (ii); or
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors, or whose nomination for election by the shareholders of the
Company, as the case may be, was approved by a vote of 66 2/3% of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office.
Notwithstanding the foregoing, a Change of Control shall not be deemed to have
occurred by virtue of the Company's or any of its employee benefit or stock
plan's filing (or being required to file after the lapse of time) a Schedule 13D
or 14D-1 (or any successor or similar schedule, form or report under the
Exchange Act) as a result of the Company or any such plan becoming the
beneficial owner of shares of capital stock of the Company entitling such person
to exercise a majority of the total voting power of the Voting Stock of the
Company.
"Class A Preferred Stock" means the Class A Convertible Preferred
Stock, par value $.01 per share, of the Company.
"Class A Shares" means the Class A Common Stock, par value $.01 per
share, of the Company.
"Class B Shares" means the Class B Common Stock, par value $.01 per
share, of the Company.
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"Closing Price" on any Trading Day with respect to the per share price
of Class A Shares means the last reported sales price regular way or, in case no
such reported sale takes place on such Trading Day, (i) the reported closing bid
price regular way on The New York Stock Exchange if the Class A Shares are
listed or admitted to trading on The New York Stock Exchange, or (ii) if the
Class A Shares are not listed or admitted to trading on The New York Stock
Exchange, the average of the reported closing bid and asked prices regular way
on the principal national securities exchange on which the Class A Shares are
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, the closing bid price in the over-the-counter
market as furnished by any New York Stock Exchange member firm that is selected
from time to time by the Company for that purpose and is reasonably acceptable
to the Majority Holders.
"Code" has the meaning specified in Section 201.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means the Class A Shares and Class B Shares.
"common stock" includes any stock of any class of capital stock which
has no preference in respect of dividends or of amount payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
issuer thereof and which is not subject to redemption by the issuer thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section 1403.
"Company Order" or "Company Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Constituent Person" has the meaning specified in Section 1311.
"Control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
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"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article Thirteen. The Company has
initially appointed the Trustee as its Conversion Agent.
"Conversion Price" has the meaning specified in Section 1301.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 000 X. 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration.
"Custodian" means The Chase Manhattan Bank, as custodian with respect
to any Global Security, or any successor entity thereto.
"Debt" of any person means, without duplication,
(a) the principal of and premium, if any, in respect of (1)
indebtedness of such person for money borrowed and (2) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such person is responsible or liable;
(b) all Capitalized Lease Obligations of such person;
(c) all obligations of such person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such person and all obligations of such person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(d) all obligations of such person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (a) through (c) above) entered into in the ordinary course of
business of such person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the third Business Day following receipt by
such person of a demand for reimbursement following payment on the
letter of credit);
(e) all obligations of such person with respect to the
redemption, repayment or other repurchase of any Redeemable Capital
Stock or Exchangeable Capital Stock (but excluding any accrued
dividends);
(f) all obligations of the type referred to in clauses (a)
through (e) above of other persons and all dividends of other persons
for the payment of which, in either case,
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such person is responsible or liable as obligor, guarantor or
otherwise, including any guarantees of such obligations and dividends;
and
(g) all obligations of the type referred to in clauses (a)
through (f) of other persons secured by any Lien on any property or
asset of such person (whether or not such obligation is assumed by such
person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
The amount of Debt of any person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations referred to above at such date.
"Default" means an event which, with the lapse of time and/or the
giving of notice, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered).
"DTC" means The Depository Trust Company, a New York corporation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the United States Securities Exchange Act of 1934
(or any successor statute), as amended from time to time.
"Exchangeable Capital Stock" means any Capital Stock which is
exchangeable for or convertible into another security (other than Capital Stock
of the Company which is neither Exchangeable Capital Stock nor Redeemable
Capital Stock).
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles from time to time
in the United States.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Majority Holders" means the Holders of a majority in principal amount
of the Outstanding Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or on the Redemption Date or
Repurchase Date or by declaration of acceleration, or otherwise.
"Note Purchase Agreements" means (i) with respect to the Original
Series A Notes, the Note Purchase Agreement dated December 1, 1996, as
supplemented by the Supplemental Agreement dated as of April 25, 1997 and (ii)
with respect to the Original Series B Notes, the Note Purchase Agreement dated
as of April 25, 1997.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company, and one of
the officers signing an Officers' Certificate given pursuant to Section 1105 or
Section 1304 shall be the principal financial or accounting officer, treasurer
or controller of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee or other counsel for the Company, and who and which shall be reasonably
acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities cancelled by the Trustee or delivered to the
Trustee for cancellation;
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(ii) Securities for payment or redemption of which money in
the necessary amount has been deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision for notice of redemption
satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities converted into Class A Shares pursuant to
Article Thirteen;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
for quorum purposes or have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such determination as to the presence of a quorum or upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities as
to which the Trustee has received written notice are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Notice" has the meaning specified in Section 1202.
"Person" or "person" means and includes an individual, a partnership, a
joint venture, a corporation, a limited liability company, a trust, an
association, a joint-stock company, an unincorporated organization and a
government or any department or agency thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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"Record Date Period" means the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Record Date" means any Regular Record Date or Special Record Date.
"Redeemable Capital Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed on or prior to the first anniversary of the
Stated Maturity of the Securities or is redeemable at the option of the holder
thereof at any time on or prior to the first anniversary of the Stated Maturity
of the Securities; provided that such Redeemable Capital Stock shall not include
any Capital Stock redeemable upon a Change of Control and provided further that
such redemption rights are subordinate to the Company's obligation to prepay
Securities upon a Change of Control pursuant to Article Fourteen.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date, which shall be a Business Day, fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means (a) in the case of the Series A Notes, the June 3 or December 3
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date, and (b) in the case of the Series B Notes, the April 15
or October 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 1401.
"Repurchase Price" has the meaning specified in Section 1401.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (including without
limitation any vice president, assistant treasurer, assistant secretary,
corporate trust officer, assistant corporate trust officer or other employee 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 knowledge and familiarity with the particular subject.
"Securities" has the meaning specified to it in the third paragraph
under the caption "Recitals of the Company".
"Securities Act" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.
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"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, the following, whether absolute or
contingent, secured or unsecured, due or to become due, outstanding on the date
of the Indenture or thereafter created, incurred or assumed: (A) all
indebtedness of the Company (including obligations of the Company arising from
its guarantee of the indebtedness of others) to banks, insurance companies and
other financial institutions evidenced by credit or loan agreements, notes or
other written obligations, (B) all other indebtedness of the Company (including
obligations of the Company arising from its guarantee of the indebtedness of
others) other than the Securities, (C) all Capitalized Lease Obligations of the
Company or in respect of any lease or related document (including a purchase
agreement) which provides that the Company is contractually obligated to
purchase or cause a third party to purchase the leased property and thereby
effectively guarantees a minimum residual value of the leased property to the
lessor and the obligations of the Company under such lease or related document
to purchase or cause a third party to purchase such leased property; (D) all
obligations of the Company issued or assumed as the deferred purchase price of
property (but excluding any portion thereof constituting trade accounts payable
arising in the ordinary course) and (E) all obligations of the Company for the
reimbursement of any letter of credit or any amendment, renewals, extensions,
modifications and refundings; provided that Senior Indebtedness shall not
include (i) any such indebtedness or obligation if the terms of such
indebtedness or obligation (or the terms of the instrument under which or
pursuant to which, it is issued) expressly provide that such indebtedness or
obligation shall not be senior in right of payment to the Securities, or
expressly provide that such indebtedness or obligation is pari passu with or
junior to the Securities of either or both series and (ii) accounts payable of
the Company to trade creditors.
"Significant Subsidiary" means, at any time, any Subsidiary that
constitutes a "Significant Subsidiary" of the Company, as such term is defined
in Rule 1-02(w) of Regulation S-X promulgated under the Securities Act.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest, as the case may be, is due and payable.
"Subsidiary" of any Person means any corporation or other entity a
majority of the total combined voting power of all classes of Voting Stock of
which shall, at the time as of which any determination is being made, be owned
by such Person and/or one or more of its Subsidiaries.
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Except as otherwise expressly indicated herein, references to Subsidiaries shall
mean Subsidiaries of the Company.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, any shares of stock
or other equity interests of any class or classes of such Person whose holders
are entitled under ordinary circumstances (irrespective of whether at the time
stock or other equity interests of any other class or classes shall have or
might have voting power by reason of the happening of any contingency) to vote
for the election of a majority of the directors, managers, trustees or other
governing body of such Person.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section
1004) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include, without limitation:
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Indenture relating to such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, each such
individual has made such examination or investigation as is necessary to enable
each such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided in
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this Indenture, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is expressly required in
this Indenture, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are sometimes referred to as the "Act"
of the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution of any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) The Company may set any day as a record date for the
purpose of determining the Holders entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders;
provided that the Company may not set a record date for, and the provisions of
this Section 104(d) shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in Section 104(e). If any
record date is set pursuant to this Section 104(d), the Holders on such record
date, and only such Persons, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Securities on such record date. Nothing in this Section 104(d) shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this Section 104(d)
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Securities on the date such action is taken.
Promptly after any record date is set pursuant to this Section 104(d), the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder in the manner set forth in Section 106.
(e) The Trustee may set any day as a record date for the
purpose of determining the Holders entitled to join in the giving or making of
(i) any Notice of Default, (ii) any declaration of acceleration referred to in
Xxxxxxx 000, (xxx) any request to institute proceedings referred to in Section
507(2), or (iv) any direction referred to in Section 512. If any
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record date is set pursuant to this Section 104(e), the Holders on such record
date, and only such Persons, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Securities on such record date. Nothing in this
Section 104(e) shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this Section 104(e) (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this Section 104(e) shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Securities on the
date such action is taken. Promptly after any record date is set pursuant to
this Section 104(e), the Trustee, at the Company's expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 106.
(f) With respect to any record date set pursuant to Sections
104(d) or 104(e), the party which sets such record date may designate any day as
the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party in
writing, and to each Holder in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to Sections 104(d) or 104(e), the party
which set such record date shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
(h) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department (Budget Group, Inc. 7.0%
Convertible Subordinated Notes, Series A, Due 2007 or Budget Group,
Inc. 6.85% Convertible Subordinated Notes, Series B, Due 2007 (as
applicable)), or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at its address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the required provisions of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
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excluded, the provision of the Trust Indenture Act shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings and the Table of Contents contained in
this Indenture are for convenience only and shall not affect the construction
hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties and their successors hereunder,
the holders of Senior Indebtedness (to the extent expressly provided herein) and
the Holders of Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES AS APPLIED IN SUCH STATE.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last date on which a
Holder has the right to convert such Holder's Securities shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) or conversion
of the Securities need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or Repurchase Date, or at the Stated
Maturity, or on such last day for
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conversion; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity or last day for
conversion, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms annexed hereto as Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, the Internal
Revenue Code of 1986, as amended, and the regulations thereunder (the "Code"),
or as may, consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. The Company shall
furnish any such legends or endorsements to the Trustee in writing.
Any definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of securities exchange or any automated quotation
system on which the Securities may be listed or quoted, as the case may be, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to (a) $80,000,000 aggregate
principal amount of Series A Exchange Notes plus (b) $45,000,000 aggregate
principal amount of Series B Exchange Notes, in each case, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108, 1302 or 1403(d); provided, however, that at no time shall the aggregate
principal amount of Original Series A Notes outstanding plus the aggregate
principal amount of Series A Exchange Notes outstanding exceed $80,000,000 and
at no time shall the aggregate principal amount of Original
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Series B Notes outstanding plus the aggregate principal amount of Series B
Exchange Notes outstanding exceed $45,000,000.
The Series A Exchange Notes shall be known and designated as the "7.0%
Convertible Subordinated Notes, Series A, Due 2007" of the Company. Their Stated
Maturity shall be April 29, 2007, and they shall bear interest at the rate of
7.0% per annum, from December 18, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually in arrears on June 18 and December 18 in each year,
commencing June 18, 1998, until the principal thereof is paid or made available
for payment, and, to the fullest extent permitted by law, at the greater of (i)
9.0% and (ii) 2.0% above the rate of interest publicly announced by Citibank,
N.A. from time to time at its principal office in the City of New York as its
prime or base rate per annum (as set forth in an Officers' Certificate upon
which the Trustee may conclusively rely) on any overdue principal and on any
overdue installment of interest.
The Series B Exchange Notes shall be known and designated as the "6.85%
Convertible Subordinated Notes, Series B, Due 2007" of the Company. Their Stated
Maturity shall be April 29, 2007, and they shall bear interest at the rate of
6.85% per annum, from October 29, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually in arrears on April 29 and October 29 in each year,
commencing April 29, 1998, until the principal thereof is paid or made available
for payment, and, to the fullest extent permitted by law, at the greater of (i)
8.85% and (ii) 2.0% above the rate of interest publicly announced by Citibank,
N.A. from time to time at its principal office in the City of New York as its
prime or base rate per annum (as set forth in an Officers' Certificate upon
which the Trustee may conclusively rely) on any overdue principal and on any
overdue installment of interest.
The principal of (premium, if any) and interest on the Securities shall
be payable at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities are not entitled to the benefit of any sinking fund.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve.
The Securities shall be convertible as provided in Article Thirteen.
The Securities shall be subject to repurchase at the option of the
Holders upon a Change of Control as provided in Article Fourteen.
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SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Upon receipt by the Company of all of the Original Securities for
exchange pursuant to the terms of the Note Purchase Agreements, the Company
shall cancel all of the Original Securities and the Securities shall be executed
on behalf of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President, any of its Executive or Senior Vice Presidents or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Chief Financial Officer, Treasurer, Controller, Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture and after the receipt by the Company and cancellation of all of
the Original Securities and the delivery of the Officers' Certificate referred
to below, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Securities shall be executed, authenticated or delivered until all
the issued and outstanding Original Securities shall have been tendered to the
Company for exchange and cancelled and the Company has delivered an Officers'
Certificate to such effect to the Trustee.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities, which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
securities.
For purposes of this Section 304, each Global Security shall be
considered a definitive Security.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered
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for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1108, 1302, or 1403(d) not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
Custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (ii)
has ceased to be a clearing agency registered under the Exchange Act, or (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global
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Security or any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(5) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members and
such owners of beneficial interests in a Global Security will not be considered
the owners or holders thereof. Neither the Company nor the Trustee will have any
responsibility or obligation to the Depositary or any of its Agent Members with
respect to (i) the accuracy of any records maintained by the Depositary, (ii)
the payment by the Depositary or any Agent Members of any amount due to any
owner of beneficial interests in a Global Security in respect of any Securities,
(iii) the delivery of any notice by the Depositary or any Agent Member, or (v)
any other action taken by the Depositary or any Agent Members.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or written notice to the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as this clause provides. Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
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proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities may be listed or quoted,
and upon such notice, as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Interest on any Security which is converted in accordance with Section
1302 during a Record Date Period shall be payable in accordance with the
provisions of Section 1302.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be destroyed by the Trustee and a
certificate of destruction delivered to the Company by the Trustee.
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SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30- day months.
SECTION 311. CUSIP NUMBER.
The Company in issuing Securities may use a "CUSIP" number and, if so,
the Trustee may use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute instruments in form and substance
satisfactory to the Company and the Trustee acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities previously authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
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(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee funds in
trust for the purpose and in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Trustee has not received any notice pursuant to the terms of
Section 1210; and
(4) the Company has delivered to the trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 305, 306, 1001, 1002 and 1003, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of securities subsequently converted
shall be returned to the Company upon Company Request.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default shall be made in the due and punctual payment of any
principal of or premium, if any, on any Security when and as the same shall
become due and payable, whether at Stated Maturity, by acceleration, by notice
of repurchase, redemption or otherwise;
(2) default shall be made in the due and punctual payment of any
interest on any Security when and as the same shall become due and payable and
such default shall have continued for a period of 30 days; or
(3) default shall be made in the due performance or observance of any
term, covenant or agreement contained in Article Fourteen; or
(4) the Company or any Significant Subsidiary shall default beyond any
applicable grace period in any payment of principal of or premium or interest on
any Debt in excess of $10,000,000 in aggregate unpaid principal amount (other
than the Securities) or in the due performance or observance of any provision
contained in any agreement relating to such Debt the effect of which is (1) to
cause such Debt to become or be declared due and payable prior to its stated
maturity or (2) to require the repayment or repurchase of such Debt prior to its
stated maturity, provided that if such default shall be remedied or cured by the
Company or waived by the holders of such Debt prior to an acceleration under
this Indenture, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without further
action upon the part of any of the holders of the Securities; or
(5) default or breach shall be made in the performance of any covenant
or warranty made by the Company in this Indenture or in any certificate or other
writing furnished pursuant hereto or thereto and such default or breach shall
have continued for a period of 60 days after the Company becomes aware of such
default or breach; or
(6) the Company or any Significant Subsidiary shall (1) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part of
its property, (2) admit in writing its inability to pay its debts as
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such debts become due, (3) make a general assignment for the benefit of its
creditors, (4) commence a voluntary case under any law relating to bankruptcy,
insolvency or reorganization, (5) file a petition seeking to take advantage of
any other law providing for the relief of debtors, or (6) fail to controvert in
a timely or appropriate manner (but within 30 days in any event), or acquiesce
in writing to, any petition filed against it in an involuntary case under any
law relating to bankruptcy, insolvency or reorganization; or
(7) a proceeding or case shall be commenced against the Company or any
Significant Subsidiary, without the application or consent of the Company or
such Significant Subsidiary in any court of competent jurisdiction seeking (1)
its liquidation, reorganization, dissolution or winding up, or composition or
readjustment of its debts, (2) the appointment of a trustee, receiver,
custodian, liquidator, encumbrancer or the like of it or of all or any
substantial part of its assets or (3) similar relief in respect of it under any
law providing for the relief of debtors, and such proceeding or case shall
continue undismissed, or unstayed and in effect, for a period of 60 days; or an
order for relief shall be entered in an involuntary case under any law relating
to bankruptcy, insolvency or reorganization against the Company or any
Significant Subsidiary.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
Upon the occurrence of any Event of Default described in paragraphs (6)
or (7) of Section 501, the unpaid principal amount of all Securities, together
with the interest accrued thereon, shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind or any other Act on the part of the Trustee or any Holder, all of which are
hereby expressly waived by the Company, and upon the occurrence and during the
continuance of any other Event of Default, the Holders of at least 25% of the
unpaid principal amount of the Outstanding Securities at the time may, by
written notice to the Company and the Trustee, declare the unpaid principal
amount of all Securities to be, and the same shall forthwith become, due and
payable, together with the interest accrued thereon, without presentment,
further demand, protest or other requirements of any kind, all of which are
hereby expressly waived by the Company.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as provided in this Article Five, the Holders of a majority in
principal amount of the Outstanding Securities, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration with interest on such
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principal, premium, if any, and to the extent permitted by law, on
overdue payments of interest at the applicable rate with respect to
overdue payments specified by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of the principal
of, premium, if any, and accrued interest on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission or annulment referred to above shall affect any subsequent
Default or Event of Default or impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Stated Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and to the extent
permitted by law, on overdue payments of interest at the applicable rate with
respect to overdue payments specified by the Securities, and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts upon such demand, the Trustee,
in its own name and as Trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific
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enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or the
creditors of either, the Trustee (irrespective of whether the principal of, and
any interest on, the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
(1) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities and
take such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such matter, and
to file such other papers or documents, in each of the foregoing cases, as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders of Securities allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official and may serve on a
creditors' committee.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as Trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article Five shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium,
if any) and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repurchase, on the
Redemption Date or Repurchase Date, as the case may be) and to convert such
Security in accordance with Article Thirteen and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy
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hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than 66 2/3% in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or interest
on any Security, or in the redemption or repurchase of any Security under
Article Eleven or Fourteen, respectively, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that the provisions of this Section 514 (to the extent
permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than ten (10) percent in principal amount of Outstanding Securities, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security or to any suit or the
enforcement of the right to convert any Security in accordance with the
provisions of Article Thirteen or to require the Company to repurchase any
Security in accordance with the provisions of Article Fourteen.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, usury or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the
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case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture, but not to verify the contents thereof.
(b) 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the Trustee receives written notice of the
occurrence of any Default hereunder, the Trustee shall give to all Holders of
Securities, in the manner provided in Section 106, notice of such Default,
unless such Default shall have been cured or waived; provided that, except in
the case of a Default in the payment of the principal of, premium, if any, or
interest on
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any Security, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors or any Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders; and
provided, further, that in the case of any Default of the type specified in
Section 501(5), no such notice to Holders of Securities shall be given until at
least 30 days after the occurrence of such Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence is specifically required by this Indenture) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, Officers' Certificate,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
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(g) the Trustee may execute any of the trusts or powers or
perform any duties either directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have it if were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent. The Trustee may become and act as trustee under
other indentures under which other securities, or certificates of interest or
participation in other securities of the Company are outstanding in the same
manner as if it were not the Trustee.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as may be
agreed in writing by the Trustee and Company from time to time for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and other persons not regularly in its
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employ), except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (in its individual capacity and as
Trustee), its officers, directors, attorneys-in-fact and agents for, and to hold
each such person harmless against, any loss, claim, damage, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in clauses (6) and (7) of Section 501, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law. The obligations of the Company under this Section 607 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture. To
secure the Company's payment obligations under this Section 607, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee except money or property held in trust to pay principal
of (and premium, if any) or interest on particular Securities and such lien
shall survive the satisfaction and discharge of the Indenture and any other
termination of the Indenture including any termination under any bankruptcy law.
"Trustee" for the purposes of this Section 607 shall include any predecessor
Trustee, but the negligence or bad faith of any Trustee shall not affect the
indemnification of any other Trustee.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, having a
combined capital and surplus of at least $50,000,000 subject to supervision by
Federal or State Authority and in good standing. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 609, it shall resign
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immediately in the manner and with the effect hereinafter specified in this
Article and a successor shall be appointed pursuant to Section 610.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation.
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
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acceptance of such appointment, become the successor Trustee and replace the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, the Trustee or any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on written request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges
and all sums due to it pursuant to Section 607, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee (including the trust created by this Indenture), shall be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may (at the expense of the Company) appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and upon exchange,
registration of transfer, partial conversion or partial redemption or pursuant
to Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions
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of this Section, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 10 days after each Regular
Record Date for a series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of the
Securities of such series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided that such list need not be furnished by the Company so long as the
Trustee is acting as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder, by receiving and holding the Securities,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than March 30 in each
calendar year, commencing March 30, 1999.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Securities are listed on any
stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that, so long as
the Company is subject to Section 13 or 15(d) of the Securities
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Exchange Act of 1934, any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company will not, directly or indirectly, merge, consolidate or
amalgamate with any other Person or sell, lease, transfer or otherwise dispose
of all or substantially all of its assets (as an entirety) to any Person,
unless:
(1) The Company shall be the continuing or surviving corporation, or
the continuing, surviving or acquiring person shall be a solvent corporation
organized in the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by supplemental indenture hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee and the
Required Holders, the due and punctual payment of the principal of and premium
(if any) and interest on the Securities and all of the other obligations of the
Company under this Indenture, and shall have provided for conversion rights in
accordance with Section 1311, and;
(2) Immediately after any such merger, consolidation, amalgamation,
sale, lease or other disposition and giving effect to any concurrent
transactions, no Default or Event of Default shall have occurred and be
continuing and the Company shall have complied with its obligations under
Article Thirteen and Article Fourteen resulting from such transaction; and
(3) The Company has delivered to the Trustee an Officers' Certificate
and Opinion of Counsel, each stating that such consolidation, merger,
amalgamation, conveyance, transfer or lease and such Supplemental Indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer, sale or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
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of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(2) to secure the Securities; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture;
provided that such action pursuant to this Clause (5) shall not adversely affect
the interests of the Holders.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a 66 2/3% in
principal amount of the Outstanding Securities, by the Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture; provided
that no such supplemental indenture shall, without the consent or affirmative
vote of the Holders of all Outstanding Securities:
(1) change (including any change to the definitions relating thereto)
the Stated Maturity of the principal of, or any installment of interest on, any
Security, or reduce the principal amount thereof or the rate of interest or the
time of payment thereon or the amounts payable upon the redemption or repurchase
thereof, or change the place of payment where, or the
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coin or currency in which, any Security or any premium or interest thereon or
any other amount in respect thereof is payable, or impair the right to institute
suit for the enforcement of any payment in respect of any Security on or after
the Stated Maturity thereof (or, in the case of redemption or any repurchase, on
or after the Redemption Date or Repurchase Date, as the case may be), or, except
as provided by Section 1311, adversely affect the right to convert any Security
as provided in Article Thirteen, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) or acceleration of the Securities provided for
in this Indenture, or
(3) modify the obligation of the Company to maintain an office or
agency in the Borough of Manhattan, The City of New York pursuant to Section
1002, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any percentage contained herein or therein or
to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder or each Outstanding Security affected
thereby, or
(5) modify (including any modifications to the definitions relating
thereto) the provisions of Article Twelve, Article Thirteen or Article Fourteen
in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company or any
successor thereto, enforceable against such entity in accordance with its terms
(subject to customary exceptions). The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities previously or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act, as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if required
by the Trustee, bear a notation in form satisfactory to the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice to all Holders of Securities of such fact, setting forth in
general terms the substance of such supplemental indenture, in the manner
provided in Section 106. Any failure of the Company to give such notice, or any
defect therein, shall not in any way impair or affect the validity of any such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay, by no later than 10:00 a.m.
New York City time on the date such payment is due, the principal of, and
interest and premium, if any, on the Securities in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company hereby appoints the corporate trust office of the Trustee,
as its agent in The City of New York where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where conversion notices, certificates and other items
required to be delivered to effect conversion may be delivered and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served.
The Company hereby also appoints the Corporate Trust Office of the
Trustee as Paying Agent for the payment of principal of, premium, if any and
interest on the Securities and as Conversion Agent for the conversion of any of
the Securities in accordance with Article Thirteen, and appoints the Corporate
Trust Office of the Trustee as transfer agent where Securities may be
surrendered for registration of transfer or exchange.
The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents with or without
cause for any or all of such purposes; provided, however, that until all of the
Securities have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 1003, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange, where Securities may be surrendered for
conversion and where notices and demand to or upon the Company, in respect of
the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and will give notice to Holders of Securities in
the manner specified in Section 106, of the appointment or termination of any
such agents and of the location and any change in the location of any such
office or agency.
If at any time the Company shall fail to maintain any such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made and notices and demands may be served
on and Securities may be surrendered for conversion to the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall act as its own Paying Agent, it will, on or before
each due date of the principal of, premium, if any, or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the Trustee of its
action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it will, on
or before each due date of the principal of, premium, if any, or interest on any
Securities, deposit with such Paying Agent(s) a sum sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held for
the benefit of the Persons entitled to such principal, premium, if any, or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure so to act; provided that if such
deposit is made on such due date, such deposit shall be received by the Paying
Agent(s) by 10:00 a.m. New York City time on such date.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal, premium,
if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating whether or
not to the knowledge of the
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signers thereof the Company is in compliance with all conditions and covenants
under the Indenture (without regard to any period of grace or requirement of
notice provided hereunder).
Any notice required to be given under this Section 1004 shall be
delivered to the Trustee at its Corporate Trust Office.
SECTION 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided that the Company shall
not be required to preserve any such right or franchise if the Company shall
determine that its preservation is no longer desirable in the conduct of the
business of the Company and that its loss is not disadvantageous in any material
respect to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will and will cause each Subsidiary to maintain and keep,
or cause to be maintained and kept, its material properties in good repair,
working order and condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times, provided that nothing in this Section shall prevent the
Company or any Subsidiary from discontinuing the operation and the maintenance
of any such properties if such discontinuance is, in the opinion of the Company,
in the best interest of the Company and its Subsidiaries taken as a whole.
SECTION 1007. KEEPING OF BOOKS; PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will, and will cause each Subsidiary to,
(1) keep proper books of record and account, and keep appropriate
reserves, all in accordance with GAAP; and
(2) pay and discharge or cause to be paid and discharged all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or upon any of its property, real, personal or mixed, or upon
any part thereof, when due and so long as the same can be paid without interest
or penalty, as well as all lawful claims for labor, materials and supplies
which, if unpaid, could by law become a lien upon its property, provided that
neither the Company nor any Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim if the amount, applicability or validity
thereof shall be contested on a timely basis in good faith by appropriate
proceedings (so long as the enforcement of any lien arising out of such
nonpayment shall be stayed during any proceedings) and if appropriate reserves,
to the extent required by GAAP, shall have been made therefor.
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SECTION 1008. BOOK-ENTRY SYSTEM.
If the Securities cease to trade in DTC's book-entry settlement system,
the Company covenants and agrees that it shall use reasonable efforts to make
such other book-entry arrangements that it determines are reasonable for the
Securities.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006 and 1007, inclusive, if before
the time for such compliance the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1010. FURTHER INSTRUMENTS AND ACTS.
Upon reasonable request of the Trustee, the Company will execute and
deliver such further instruments and perform such further acts as may be
reasonably necessary, or proper to carry out more effectively the purposes of
this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
(1) Upon notice given as provided in Section 1105, the Company may at
any time on or after April 29, 2000 redeem the Series A Exchange Notes as a
whole, or from time to time in part (in a minimum amount of $1,000,000 and
otherwise in integral multiples of $1,000), in each case at the principal
amount to be redeemed, together with interest accrued thereon to the date fixed
for such redemption, plus the applicable redemption premium for the Series A
Exchange Notes (expressed as a percentage of the principal amount so to be
redeemed) indicated below (such amount being referred to as the "Series A
Redemption Price"):
Redemption Date Redemption Premium
--------------- ------------------
April 29, 2000 to April 28, 2001 4.667%
April 29, 2001 to April 28, 2002 3.889%
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April 29, 2002 to April 28, 2003 3.111%
April 29, 2003 to April 28, 2004 2.333%
April 29, 2004 to April 28, 2005 1.556%
April 29, 2005 to April 28, 2006 0.778%
after April 28, 2006 none
provided that prior to April 29, 2002, Series A Exchange Notes may not be
redeemed pursuant to this Section unless the Closing Price per Class A Share for
a period of 10 consecutive Trading Days commencing 20 Trading Days before the
date of the Company's notice pursuant to Section 1105 in respect of such
redemption was at least 150% of the Series A Conversion Price then in effect.
(2) Upon notice given as provided in Section 1105, the Company may at
any time on or after April 29, 2000 redeem the Series B Exchange Notes as a
whole, or from time to time in part (in a minimum amount of $1,000,000 and
otherwise in integral multiples of $1,000), in each case at the principal amount
to be redeemed, together with interest accrued thereon to the date fixed for
such redemption, plus the applicable redemption premium for the Series B
Exchange Notes (expressed as a percentage of the principal amount so to be
redeemed) indicated below (such amount being referred to as the "Series B
Redemption Price"):
Redemption Date Redemption Premium
--------------- ------------------
April 29, 2000 to April 28, 2001 4.567%
April 29, 2001 to April 28, 2002 3.806%
April 29, 2002 to April 28, 2003 3.044%
April 29, 2003 to April 28, 2004 2.283%
April 29, 2004 to April 28, 2005 1.522%
April 29, 2005 to April 28, 2006 0.761%
after April 28, 2006 none
provided that prior to April 29, 2002, Series B Exchange Notes may not be
redeemed pursuant to this Section unless the Closing Price per Class A Share for
a period of 10 consecutive Trading Days commencing 20 Trading Days before the
date of the Company's notice pursuant to Section 1105 in respect of such
redemption was at least 150% of the Series B Conversion Price then in effect.
The Series A Redemption Price and the Series B Redemption Price are
sometimes referred to together as the "Redemption Price."
(3) The Company will not make any redemption of the Securities of
either series unless the Company shall concurrently redeem ratable portions of
the Outstanding Securities of the other series issued pursuant to this
Indenture, provided, however, that prior to April 29, 2002 concurrent redemption
of the Series B Exchange Notes shall not be required if the condition to such
redemption set forth in the proviso to paragraph (2) of this Section 1101 is not
met.
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(4) Any Security that is converted in whole or in part into Class A
Shares after notice of redemption given as provided in Section 1105 and prior to
the redemption date specified therein shall be deemed to have been redeemed on
the date of such redemption to the extent of the lesser of (i) the principal
amount of such Security so converted and (ii) the principal amount of such
Security called for redemption on the date of such redemption; and, accordingly,
the principal amount of such Securities actually to be redeemed on such
redemption date shall be reduced by an amount equal to the amount that is deemed
to have been redeemed by reason of conversion as aforesaid and the aggregate
principal amount of the Securities to be redeemed on such redemption date shall
be reduced by an amount equal to the aggregate principal amount of all
Securities deemed to have been redeemed by reason of conversion as aforesaid.
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted
or required by any provision of this Indenture, shall be made in accordance with
such provision and this Article Eleven.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 35 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be redeemed ratably in proportion to the
respective unpaid principal amounts of each series in portions (equal to
$1,000 or an integral multiple thereof) of the principal amount of Securities
of an amount larger than $1,000,000 for any single partial redemption.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of the Securities selected for partial redemption, the principal amount thereof
to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 20 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at such Holder's address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the applicable Redemption Price, Redemption Premium, if any, and
accrued interest, if any,
(3) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the applicable Redemption Price and
accrued interest, if any, will become due and payable upon each such Security to
be redeemed and that interest thereon will cease to accrue on and after said
date,
(5) the applicable Conversion Price, the date on which the right to
convert the Securities to be redeemed will terminate (which shall be the
Business Day preceding the Redemption Date) and the place or places where such
Securities may be surrendered for conversion, and
(6) the place or places where such Securities are to be surrendered for
payment of the applicable Redemption Price and accrued interest, if any.
Each notice of a redemption to be made prior to April 29, 2002 shall be
accompanied by an Officers' Certificate showing the Closing Price for each of
the relevant Trading Days as required by Section 1101.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request
and expense, by the Trustee in the name and at the expense of the Company, and
such notice, when given to the Holders, shall be irrevocable.
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SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money (which shall be in immediately available funds on such Redemption Date)
sufficient to pay the applicable Redemption Price of, Redemption Premium, if
any, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date
other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit; provided that if such deposit is
made on the Redemption Date, such deposit shall be received by the Trustee or
Paying Agent, as the case may be, by 10:00 a.m. New York City time on such date.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the applicable Redemption Price, and
Redemption Premium, if any, including accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
applicable Redemption Price, together with accrued interest to the Redemption
Date; provided that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If the applicable Redemption Price, Redemption Premium, and accrued
interest on any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price and Redemption Premium,
if any, shall, until paid, bear interest from the Redemption Date at a rate of
7.0% per annum in the case of the Series A Exchange Notes and at a rate of 6.85%
per annum in the case of the Series B Exchange Notes.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in
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form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1109. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities by an agreement with
one or more investment bankers or other purchasers to purchase such Securities
by paying to the Trustee in trust for the Holders, on or before the Redemption
Date, an amount not less than the applicable Redemption Price, Redemption
Premium, if any, and interest accrued to the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price, Redemption
Premium, if any, and interest accrued to the Redemption Date, shall be deemed to
be satisfied and discharged to the extent such amount is so paid to the Holders.
If such an agreement is entered into (a copy of which shall be filed with the
Trustee prior to the Redemption Date), any Securities not duly surrendered for
conversion by the Holders thereof may, at the option of the Company, be deemed,
to the fullest extent permitted by law, and consistent with any agreement or
agreements with such purchasers, acquired by such purchasers from such Holders
and (notwithstanding anything to the contrary contained in Article Thirteen)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the Business Day prior to the Redemption Date (and the
right to convert any such Securities shall be extended through such time),
subject to payment of the above amount as aforesaid. At the direction of the
Company, the Trustee shall hold and dispose of any such amount paid to it in the
same manner as it would monies deposited with it by the Company for the
redemption of Securities. Without the Trustee's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise materially affect any
of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers to which the Trustee has not
consented in writing, including the costs and expenses, including reasonable
legal fees, incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
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ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article Twelve (subject to the
provisions of Article Four), the indebtedness represented by the Securities and
the payment of the principal of (and premium, if any) and interest on each and
all of the Securities are hereby expressly made subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness in accordance
with the provisions hereunder. Whenever in this Article Twelve there is a
reference, in any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Repurchase Price or
applicable Redemption Price payable in cash in respect of such Security to the
extent that such Repurchase Price or applicable Redemption Price payable in cash
is, was or would be so payable at such time, and express mention of the
Repurchase Price and the applicable Redemption Price in any provision of this
Article Twelve shall not be construed as excluding the Repurchase Price or
applicable Redemption Price payable in cash in those provisions of this Article
Twelve when such express mention is not made. This Article Twelve is made for
the benefit of existing and future holders of Senior Indebtedness, and such
holders are made obligees hereunder and they or each of them may enforce such
provisions. Notwithstanding anything to the contrary contained herein, this
Article 12 shall not prejudice the Trustee's rights under Section 607 hereof.
SECTION 1202. NO PAYMENTS IN CERTAIN CIRCUMSTANCES; PAYMENT OVER OF PROCEEDS
UPON DISSOLUTION, ETC.
No payment on account of principal of, premium, if any, or interest on,
or redemption or repurchase of, the Securities shall be made if, at the time of
such payment or immediately after giving effect thereto: (i) a default in the
payment of principal, premium, if any, or interest or other amounts due on any
Senior Indebtedness occurs and is continuing (or, in the case of Senior
Indebtedness for which there is a period of grace, in the event of such a
default that continues beyond the period of grace specified in the instrument or
lease evidencing such Senior Indebtedness); or (ii) a default, other than a
payment default, on any Senior Indebtedness occurs and is continuing that then
permits holders of such Senior Indebtedness to accelerate the maturity thereof
and the Trustee receives a notice of the default (a "Payment Blockage Notice")
from a holder of Senior Indebtedness (or a trustee therefor or an agent bank)
pursuant to Section 1210 hereof. Notwithstanding the foregoing, the Company may
make, and the Trustee may receive and shall apply, any payment in respect of the
Securities (for principal, premium, if any, or interest or repurchase) if such
payment was made prior to the occurrence of any of the contingencies specified
in clauses (i) and (ii) above.
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During any 360 day period, the aggregate of all periods of payment
blockage shall not exceed 180 days and there shall be a period of at least 180
consecutive days in each 360 day period when no payment blockage is in effect.
No default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such default shall have been cured for a period
of not less than 60 consecutive days.
The Company may and shall resume payments on and distributions in
respect of the Securities upon the earlier of: (i) in the case of a payment
default, the date upon which the default is cured or waived in accordance with
the agreements evidencing the Senior Indebtedness with respect to which such
payment default occurred, or (ii) in the case of a nonpayment default, the
earlier of (A) the date on which such default is cured or waived or shall have
ceased to exist or any acceleration of the Senior Indebtedness for which such
nonpayment default relates shall have been rescinded or annulled or such Senior
Indebtedness shall have been discharged in accordance with the agreements
evidencing the Senior Indebtedness with respect to which such default occurred
or (B) 180 days after the applicable Payment Blockage Notice is received.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness in cash or other immediately available funds, or provision
shall be made for such payment in cash or other immediately available funds or
otherwise in a manner satisfactory to each holder of Senior Indebtedness with
respect to its indebtedness, before the Holders of the Securities are entitled
to receive any payment on account of principal of (or premium, if any) or
interest on the Securities, and to that end the holders of Senior Indebtedness
shall be entitled to receive, for any application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities, which may be payable or deliverable in respect of the Securities in
any such case, proceeding, dissolution, liquidation or other winding up or
similar event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, securities or other property, before all Senior Indebtedness is
paid in full or payment thereof provided for, and if such fact shall, at or
prior to the time of such payment or distribution, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all
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Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words, "cash, securities or
other property" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which shares of stock
are subordinated in right of payment to all then outstanding Senior Indebtedness
to substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article Twelve. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1203. PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior
Indebtedness outstanding at the time such Securities so become due and payable
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of such Senior Indebtedness, or provisions shall be made for
such payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment by the Company on account of the principal of
(or premium, if any) or interest on the Securities or on account of the purchase
or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder then and in such event such payment shall be paid over and
delivered forthwith to the holders of Senior Indebtedness, or as a court of
competent jurisdiction shall direct, for application to the payment of any due
and unpaid Senior Indebtedness, to the extent necessary to pay all such due and
unpaid Senior Indebtedness in cash or other immediately available funds, after
giving effect to any concurrent payment to or for the holders of Senior
Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
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SECTION 1204. [RESERVED.]
SECTION 1205. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payments at any time of principal of (and
premium, if any) or interest on the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of (and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 1206. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1207. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture,
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subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 1208. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1209. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder of any Senior
Indebtedness, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment, or the amount of interest, fees or other amounts
payable in respect of, or extend the time of payment of, or renew, increase, or
otherwise alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the payment or collection of Senior Indebtedness; (iv) exercise or refrain from
exercising any rights or remedies against the Company or any other Person; (v)
give or fail to give any notice, or take or fail to take any other action,
required by law, by agreement or otherwise to preserve the rights of any holder
of Senior Indebtedness against the Company or any other Person liable in respect
of Senior Indebtedness or with respect to any property pledged, mortgaged, or
otherwise subject to a security interest or lien securing Senior Indebtedness;
(vi) perform or fail to perform any obligation of such holders of Senior
Indebtedness under any instrument or agreement evidencing, guaranteeing,
securing or otherwise affecting or relating to Senior Indebtedness; or (vii)
take or fail to take any action that might otherwise constitute a defense
available to, or a discharge of, the Company or any other Person liable in
respect of Senior Indebtedness.
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SECTION 1210. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness (or a
trustee therefor or an agent bank) or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 801, shall be entitled in all respects to assume that no such facts
exist; provided that if the Trustee shall not have received the notice provided
for in this Section at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Notwithstanding anything in this Article Twelve to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 401, and any such payment shall not be
subject to the provisions of Section 1202 or 1203.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor or an agent
bank) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor or an agent bank). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1211. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or
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similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1212. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
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 it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
SECTION 1213. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1214. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided that
Section 1213 shall not apply to the Company or any Affiliate of this Company if
it or such Affiliate acts as Paying Agent.
SECTION 1215. CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article only: (1) the issuance and delivery of
Class A Shares upon conversion of Securities in accordance with Article Thirteen
shall not be deemed to constitute a payment or distribution on account of the
principal of or premium or interest on Securities or on account of the purchase
or other acquisition of Securities, and (2) the payment,
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issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to constitute payment
on account of the principal of such Security. For the purposes of this Section,
the term "junior securities" means (a) Class A Shares and any cash, securities
or other property into which the Securities are convertible pursuant to Article
Thirteen and (b) securities of the Company which are subordinated in right of
payment to all Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in this
Article. Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article Thirteen.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 1301. CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this Article
Thirteen, at the option of the Holder thereof any Security may be converted at
any time into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100th of a share) of Class A Shares of the Company
at the applicable Conversion Price, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall expire at the
close of business on April 29, 2007, subject, in the case of conversion of any
Global Security, to any Applicable Procedures. In case a Security or portion
thereof is called for redemption at the election of the Company or the Holder
thereof exercises his right to require the Company to repurchase a Security or
portion thereof, such conversion right in respect of such Security, shall expire
(a) at the close of business on the Business Day immediately preceding the
applicable Redemption Date, in the case of a Security called for redemption, and
(b) at the close of business on the Business Day immediately preceding the
Repurchase Date, in the case of a Security tendered for repurchase, in each case
unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be, and in each case subject as aforesaid to any
Applicable Procedures with respect to any Global Security.
Each Series A Exchange Note will be convertible into such number of
whole Class A Shares as is equal to the unpaid principal amount being converted
of such Series A Exchange Notes divided by the initial conversion price of
$20.07 per share (the "Series A Conversion Price") subject to adjustment as
provided in Section 1304.
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Each Series B Exchange Note will be convertible into such number of
whole Class A Shares as is equal to the unpaid principal amount being converted
of such Series B Exchange Notes divided by the initial conversion price of
$27.96 per share, subject to adjustment as provided in Section 1304 (the "Series
B Conversion Price") (the Series A Conversion Price and the Series B Conversion
Price being sometimes referred to herein as the "Conversion Price"). The
applicable Conversion Price shall be adjusted in certain instances as provided
in this Article Thirteen.
SECTION 1302. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 1002, accompanied by a duly
signed notice (in the form attached to the Security) stating that the Holder
elects to convert such Security or, if less than the entire principal amount
thereof is to be converted the portion thereof to be converted. Each Security
surrendered for conversion (in whole or in part) during the Record Date Period
shall (except in the case of any Security or portion thereof which has been
called for redemption on a Redemption Date, or which is repurchasable on a
Repurchase Date, occurring, in either case, within such Record Date Period
(including any Securities or portions thereof called for redemption on a
Redemption Date that is between a Regular Record Date or an Interest Payment
Date, as the case may be)) be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of such
Security (or part thereof, as the case may be) being surrendered for conversion.
The interest so payable on such Interest Payment Date with respect to any
Security (or portion thereof, if applicable) which has been called for
redemption on a Redemption Date, or is repurchasable on a Repurchase Date,
occurring, in either case, during the Record Date Period, (including any
Security called for Redemption on a Redemption Date that is a Record Date or
Interest Payment Date, as the case may be) which Security (or portion thereof,
if applicable) is surrendered for conversion during such Record Date Period (or
on the last Business Day prior to the Regular Record Date or Interest Payment
Date in the case of any Security (or portion thereof, as the case may be) called
for redemption on such Regular Record Date or Interest Payment Date, as the case
may be), shall be paid to the Holder of such Security being converted in an
amount equal to the interest that would have been payable on such Security if
such Security had been converted as of the close of business on such Interest
Payment Date. The interest so payable on such Interest Payment Date in respect
of any Security (or portion thereof, as the case may be) which has not been
called for redemption on a Redemption Date, or is not eligible for repurchase on
a Repurchase Date, occurring, in either case, during the Record Date Period,
which Security (or portion thereof, as the case may be) is surrendered for
conversion during such Record Date Period, shall be paid to the Holder of such
Security as of such Regular Record Date. Interest payable in respect of any
Security surrendered for conversion on or after a Regular Record Date and prior
to an Interest Payment Date shall be paid to the Holder of such Security as of
such Regular Record Date. Except as provided in this paragraph and subject to
the last paragraph of
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Section 307, no cash payment of adjustment shall be made upon any conversion on
account of any interest accrued from the Interest Payment Date next preceding
the conversion date, in respect of any Security (or part thereof, as the case
may be) surrendered for conversion, or on account of any dividends on the Class
A Shares issued upon conversion. The Company's delivery to the Holder of the
number of shares of Class A Shares (and cash in lieu of fractions thereof, as
provided in this Indenture) into which a Security is convertible will be deemed
to satisfy the Company's obligation to pay the principal amount of the Security.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Class A Shares issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Class A Shares at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver to the Trustee, for delivery to the Holder within five
Business Days after the Conversion Date, a certificate or certificates for the
number of full shares of Class A Shares issuable upon conversion, together with
payment in lieu of any fraction of a share, as provided in Section 1303.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in the aggregate principal amount equal
to the unconverted portion of the principal amount of such Security. A Security
may be converted in part, but only if the principal amount of such Security to
be converted is any integral multiple of $1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to any
integral multiple of $1,000.
SECTION 1303. FRACTIONS OF SHARES.
No fractional Class A Shares shall be issued upon conversion of any
Security or Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional Class A Shares which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall calculate and pay a cash adjustment in respect of
such fraction (calculated to the nearest 1/100th of a share) in an amount equal
to the same fraction of the applicable Closing Price at the close of business on
the day of conversion.
SECTION 1304. ADJUSTMENT OF CONVERSION PRICE.
The applicable Conversion Price shall be subject to adjustments from
time to time as follows:
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(1) In case the Company shall (a) subdivide its outstanding
shares of Class A Shares into a greater number of shares or (b) combine its
outstanding Class A Shares into a smaller number of shares, the applicable
Conversion Price in effect immediately prior to such action shall be adjusted
so that the holder of any security thereafter surrendered for conversion shall
be entitled to receive the number of shares of Class A Shares which such holder
would have received or been entitled to receive immediately following such
action had such security been converted immediately prior thereto. An
adjustment made pursuant to this clause (1) shall become effective immediately.
(2) In case the Company shall pay a dividend or make a
distribution on Class A Shares in Class A Shares, on the day after the record
date for the determination of holders entitled to receive such dividend or
distribution, the applicable Conversion Price shall be adjusted to a price,
computed to the nearest cent, so that the same shall be reduced to the product
of:
(A) the applicable Conversion Price in effect immediately
prior to the record date for the determination of holders entitled to
receive such dividend or distribution multiplied by a fraction, of
which
(B) the numerator shall be the number of Class A Shares
outstanding at the close of business on the date fixed for such
determination, and of which
(C) the denominator shall be the sum of such number of Class A
Shares and the total number of Class A Shares constituting such
dividend or other distribution.
Such adjustment shall become effective immediately, except as provided
in clause (7) below, on the day after the record date for the
determination of holders entitled to receive such dividend or
distribution. For the purposes of this clause (2), the number of Class
A Shares at any time outstanding shall not include shares held in the
treasury of the Company. The Company shall not pay any dividend or make
any distribution on Class A Shares held in the treasury of the Company.
(3) In case the Company shall issue rights, warrants or options
to all holders of Class A Shares entitling them (for a period expiring within 45
days after the record date therefor) to subscribe for or purchase Class A Shares
at a price per share less than the Current Market Price per share (as determined
pursuant to clause (6) below) of the Class A Shares on the day after the record
date for the determination of holders entitled to receive such rights, warrants
or options, the applicable Conversion Price shall be adjusted to a price,
computed to the nearest cent, so that it shall equal the price determined by
multiplying:
(A) the applicable Conversion Price in effect immediately
prior to the date of issuance of such rights, warrants or options by a
fraction, of which
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(B) the numerator shall be (i) the number of Class A Shares
outstanding on the date of issuance of such rights, warrants or options
immediately prior to such issuance, plus (ii) the number of Class A
Shares which the aggregate offering price of the total number of Class
A Shares so offered for subscription or purchase would purchase at such
Current Market Price (determined by multiplying such total number of
Class A Shares by the sum of the exercise price of such rights,
warrants or options plus the fair market value of any consideration
paid to the Company for such rights, warrants or options and dividing
the product so obtained by such Current Market Price), and of which
(C) the denominator shall be (i) the number of Class A Shares
outstanding on the date of issuance of such rights, warrants or
options, immediately prior to such issuance, plus (ii) the number of
additional Class A Shares which are so offered for subscription or
purchase.
Such adjustment shall become effective immediately, except as provided
in clause (7) below, on the day after the record date for the
determination of holders entitled to receive such rights, warrants or
options. For the purposes of this clause (3), the number of Class A
Shares at any time outstanding shall not include shares held in the
treasury of the Company. The Company shall not issue any rights,
warrants or options in respect of Class A Shares held in the treasury
of the Company.
(4) In case the Company shall issue to an Affiliate Class A
Shares or Class B Shares at a net price per share less than the Current Market
Price per share (as determined pursuant to clause (6) below), on the date the
Company fixes the offering price of such additional shares, the applicable
Conversion Price shall be reduced so that it shall equal the price determined by
multiplying:
(A) such applicable Conversion Price in effect immediately
prior thereto by a fraction, of which
(B) the numerator shall be (i) the number of shares of Common
Stock outstanding immediately prior to the issuance of such additional
shares, plus (ii) the number of Class A Shares which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at the Current Market Price, and of which
(C) the denominator shall be the number of shares of Common
Stock that would be outstanding immediately after the issuance of such
additional shares.
Such adjustment shall become effective immediately after the issuance
of such shares of Common Stock. An adjustment shall be made
successively whenever such an issuance is made. For the purposes of
this clause (4), the number of Class A Shares at any time outstanding
shall not include shares held in the treasury of the Company. This
clause (4)
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shall not apply to shares of Common Stock issued to any Affiliate under
bona fide benefits plans adopted by the Board of Directors for the
benefit of the Company's directors, employees, consultants and advisers
and approved by the holders of shares of Common Stock if required by
law.
(5) In case the Company shall distribute to all or substantially
all holders of Class A Shares documents or instruments evidencing indebtedness,
equity securities (including equity interests in a Subsidiary) other than Class
A Shares, or other assets (other than ordinary cash dividends out of earnings),
or shall distribute to all or substantially all holders of Class A Shares
rights, warrants or options to subscribe to securities (other than those
referred to in clause (3) above), then in each such case the Company shall pay
to the holder of each Security such holder's pro rata share, on an As Converted
Basis in respect of such Security, of such distributions.
(6) For the purpose of any computation under clause (3) or (4)
above, the "Current Market Price" per Class A Share on any date of determination
shall be deemed to be the average of the last sale prices of a Class A Share for
the ten consecutive Trading Days selected by the Company commencing not more
than 20 Trading Days before the day (the "Benchmark Date") which is the earlier
of (a) such date of determination and (b) the day immediately preceding the "ex"
date with respect to the issuance or distribution requiring such computation,
and ending not later than the Benchmark Date. For purposes of this clause (6),
the term "'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Class A Shares trade regular way on The New
York Stock Exchange or such other principal national securities exchange on
which the Class A Shares are listed or admitted to trading (or if not so listed
or admitted on The New York Stock Exchange or any other principal national
securities exchange is no longer reporting trading information) without the
right to receive such issuance or distribution.
(7) In any case in which this Section 1304 shall require that an
adjustment be made on the day after a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective (a) defer making any
cash payment or issuing to the holder of such Security the number of Class A
Shares and other capital stock of the Company issuable upon such conversion in
excess of the number of Class A Shares and other capital stock of the Company
issuable thereupon only on the basis of the applicable Conversion Price prior to
adjustment, and (b) not later than five Business Days after such adjustment
shall have become effective, pay to such holder the appropriate cash payment and
issue to such holder the additional Class A Shares and other capital stock of
the Company issuable on such conversion.
(8) No adjustment in the applicable Conversion Price shall be
required in respect of any dividend or distribution if holders of the Securities
may participate therein (on a basis and with notice that the Board of Directors
determines in good faith to be fair and appropriate) and
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receive the same consideration they would have received if they had converted
the Securities immediately prior to the record date with respect to such
dividend or distribution. In addition, no adjustment in the applicable
Conversion Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the applicable Conversion Price, provided
that any adjustment which by reason of this clause (8) is not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Thirteen shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(9) Except as expressly set forth in this Section 1304, no
adjustment in the applicable Conversion Price shall be made because the Company
issues, in exchange for cash, property or services, Class A Shares, or any
securities convertible into or exchangeable for Class A Shares, or securities
(including warrants, rights and options) carrying the right to subscribe for or
purchase Class A Shares or such convertible or exchangeable securities
(including Class B Shares), provided that in the case of any such issuance to an
Affiliate written evidence of the action of the Board of Directors authorizing
such issuance shall be filed with the secretary of the Company (which evidence
shall include a determination by the Board of Directors that the terms of such
issuance are not less favorable to the Company than would have been obtainable
in a comparable arm's-length transaction with a Person not an Affiliate) and
notice thereof shall have been given to each holder of the Securities.
(10) Whenever the applicable Conversion Price is adjusted as herein
provided, the Company shall promptly give each holder of Securities a notice of
such adjustment accompanied by a copy of an Officers' Certificate setting forth
the applicable Conversion Price after such adjustment and setting forth in
reasonable detail the facts requiring such adjustment and the calculations on
which the adjustment is based.
(11) At its option, the Company may make such reduction in the
applicable Conversion Price, in addition to those otherwise required by this
Section 1304, as the Board of Directors deems advisable to avoid or diminish any
income tax to holders of Class A Shares resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes; provided that any such reduction shall not be
effective until written evidence of the action of the Board of Directors
authorizing such reduction shall be filed with the secretary of the Company and
notice thereof shall have been given to each holder of Securities.
(12) Notwithstanding any other provision of this Section 1304, no
adjustment to the applicable Conversion Price shall reduce the applicable
Conversion Price below the then par value per share of the Class A Shares, and
any such purported adjustment shall instead reduce the applicable Conversion
Price to such par value. The Company hereby covenants not to take any action (i)
to increase the par value per share of the Class A Shares or (ii) that would or
does result in any adjustment in the applicable Conversion Price that, if made
without giving effect to the previous sentence, would cause the applicable
Conversion Price to be less than the then par value per share of the Class A
Shares.
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SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever any Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price in
accordance with Section 1304 and shall prepare a certificate signed by the
principal accounting or financial officer of the Company setting forth the
adjusted Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall promptly be filed with the
Trustee and with each Conversion Agent; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be prepared, and
as soon as practicable after it is prepared, such notice shall be provided by
the Company to all Holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
SECTION 1306. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than exclusively in cash
or (ii) exclusively in cash in an amount that would require any adjustment
pursuant to Section 1304; or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the Company,
or of any consolidation, merger, or share exchange to which the Company is a
party and for which approval of any stockholders of the Company is required, or
of the conveyance, sale, transfer or lease of all or substantially all of the
assets of the Company;
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
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(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the Company's outstanding shares of Common Stock
(or shall amend any such tender offer);
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all Holders in accordance with Section 106, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record, expiration or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants or, if a record is to be
taken, the date as of which the holders of record to be entitled to such
dividend, distribution, rights, options or warrants are to be determined, (y)
the date on which the right to make tenders under such tender offer expires or
(z) the date on which such reclassification, consolidation, merger, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such notice or the notice
referred to in the following paragraph nor any defect in such notice shall
affect the legality or validity of the proceedings clauses (a) through (e) of
this Section 1306. If at the time the Trustee shall not be a Conversion Agent, a
copy of such notice shall also be filed by the Company with the Trustee.
The preceding paragraph to the contrary notwithstanding, the Company
shall cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 1002, and shall cause to be
provided to all Holders in accordance with Section 106 notice of any tender
offer by the Company or any Subsidiary for all or any portion of the Common
Stock at or about the time that such notice of tender offer is provided to the
public generally.
SECTION 1307. COMPANY TO RESERVE CLASS A SHARES.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Class A Shares, for the
purpose of effecting the conversion of Securities, the full number of shares
then issuable upon the conversion of all Outstanding Securities.
SECTION 1308. TAXES ON CONVERSIONS.
Except as provided in the next sentence, the Company will pay any and
all taxes and duties that may be payable in respect of the issue or delivery of
Class A Shares on conversion of Securities pursuant hereto. The Company shall
not, however, be required to pay any tax or duty which may be payable in respect
of any transfer involved in the issue and delivery of Class A Shares in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid
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to the Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid or that no such
tax or duty need be paid.
SECTION 1309. COVENANT AS TO CLASS A SHARES.
The Company agrees that all Class A Shares which may be delivered upon
conversion of Securities, upon such delivery, will have been duly authorized and
validly issued and will be fully paid and nonassessable and, except as provided
in Section 1308, the Company will pay all taxes, liens and charges with respect
to the issue thereof.
SECTION 1310. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1311. PROVISION IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS.
If any transaction shall occur, including without limitation (1) any
recapitalization or reclassification of shares of Common Stock (other than a
change in par value, or from no par value to par value, or as a result of a
subdivision or combination of Common Stock), (2) any consolidation, merger or
amalgamation of the Company with or into another person or any merger of another
person into the Company (other than a merger that does not result in a
reclassification, conversion, exchange or cancellation of Common Stock), (3) any
sale or transfer of all or substantially all of the assets of the Company, or
(4) any compulsory share exchange, pursuant to any of which holders of Class A
Shares or Class B Shares shall be entitled to receive other securities, cash or
other property, the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture, subject to the approval of the
Majority Holders, providing that the Holder of each Security then Outstanding
shall have the right thereafter, during the period such Security shall be
convertible as specified in Section 1301, to convert such Security only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, conveyance,
sale, transfer or lease, after giving effect to any adjustment in the applicable
Conversion Price in accordance with Section 1304, assuming such holder of Class
A Shares is not a company formed by such consolidation or amalgamation or
resulting from such merger or that acquires such assets or that acquires the
Company's shares, as the case may be (the "Constituent Person"), and the Company
shall not enter into any such consolidation, merger, amalgamation or sale,
unless the Constituent Person shall make provisions satisfactory to the Majority
Holders in its certificate or articles of incorporation or other constituent
document to establish such right. Such certificate or articles of incorporation
or other constituent document shall provide for adjustments that, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent
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documents, shall be as nearly equivalent as may be practicable to the relevant
adjustments provided for in this Section 1311. Prior to the occurrence of any
such transaction, the Company may redeem the Securities pursuant to Section
1101, if such redemption is then permitted by said Section. Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section 1311 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 106 promptly upon such execution.
Neither the Trustee, any Paying Agent, nor any Conversion Agent shall
be under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any such
consolidation, merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Opinion of Counsel with
respect thereto, which the Company shall cause to be furnished to the Trustee
upon request.
For purposes of preventing duplicative adjustments, if and to the
extent Section 1311 applies to any event or occurrence, Section 1304 shall not
apply.
SECTION 1312. RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
The Trustee, subject to the provisions of Section 601, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the applicable Conversion Price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need to be entered into.
Neither the Trustee, subject to the provisions of Section 601, nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Class A Shares, or of any other securities or
property or cash, which may at any time be issued or delivered upon the
conversion of any Security; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 601,
nor any Conversion Agent shall be responsible for any failure of the Company to
make or calculate any cash payment or to issue, transfer, or deliver any Class A
Shares or share certificates or other securities or property or cash upon the
surrender of any Security for the purpose of conversion; and the Trustee,
subject to the provisions of Section 601, and any Conversion Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
of the Company contained in this Article.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL
SECTION 1401. RIGHT TO REQUIRE REPURCHASE.
Promptly and in any event within 20 days after the occurrence of a
Change in Control, the Company shall deliver a Company Notice (as defined in
Section 1403) to the holders of all Outstanding Securities which shall offer to
prepay all Securities on the date therein specified (the "Repurchase Date"),
which shall be a Business Day not less than 30 nor more than 60 days after the
date of such Company Notice, at a price equal to 101% of the principal amount of
the Securities to be repurchased plus interest accrued to the Repurchase Date
(the "Repurchase Price"); provided, however, that installments of interest on
Securities whose Stated Maturity is on or prior to the Repurchase Date shall be
payable in cash to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Date according to their terms and the provisions of Section 307. Such
right to require the repurchase of the Securities shall not continue after a
discharge of the Company from its obligations with respect to the Securities in
accordance with Article Four, unless a Change of Control shall have occurred
prior to such discharge. The Repurchase Price shall be paid in cash; provided,
however, that failure of the Company to pay the Repurchase Price on the
Repurchase Date in cash shall constitute an Event of Default for purposes of
Section 501(1) hereof. Whenever in this Indenture (including Sections 202, 301,
501(2) and 508) there is a reference, in an context, to the principal of any
Security as of any time, such reference shall be deemed to include reference to
the Repurchase Price payable in respect of such Security to the extent that such
Repurchase Price is, was or would be so payable at such time, and express
mention of the Repurchase Price in any provision of this Indenture shall not be
construed as excluding the Repurchase Price in those provisions of this
Indenture when such express mention is not made;
SECTION 1402. [RESERVED]
SECTION 1403. NOTICES, METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) Unless the Company shall have previously called for redemption all
of the Outstanding Securities or unless all of the Outstanding Securities shall
have theretofore been converted in accordance with Article Thirteen, on or
before the 20th day after the occurrence of a Change of Control, the Company or,
at the request and expense of the Company on or before the 10th day after such
occurrence, the Trustee (in the stead of the Company), shall give to all
Holders, in the manner provided in Section 106, notice (the "Company Notice") of
the occurrence of the Change of Control and of the repurchase right set forth
herein arising as a result thereof. The Company shall also deliver a copy of the
Company Notice to the Trustee.
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Each Company Notice shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised (at
least five Business Days prior to the Repurchase Date),
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right, and the place or places where such Securities are
to be surrendered for payment of the Repurchase Price and accrued interest, if
any,
(5) that on the Repurchase Date the Repurchase Price, and accrued
interest, if any, will become due and payable upon each such Security designated
by the Holder to be repurchased, and that interest thereon shall cease to accrue
on and after said date, and
(6) the Conversion Price then in effect, the date on which the
right to convert the principal amount of the Securities to be repurchased will
terminate and the place or places where such Securities may be surrendered for
conversion.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article
Fourteen are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to
the Trustee or any Paying Agent on or before the fifth Business Day prior to the
Repurchase Date (i) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the
Securities to be repurchased (and, if any Security is to repurchased in part,
the portion of the principal amount thereof to be repurchased and the name of
the Person in which the portion thereof to remain Outstanding after such
repurchase is to be registered), and a statement that an election to exercise
the repurchase right is being made thereby, and (ii) the Securities with respect
to which the repurchase right is being exercised. Such written notice shall be
irrevocable, except that the right of the Holder to convert the Securities with
respect to which the repurchase right is being exercised shall continue until
the close of business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid to
the Trustee or the Paying Agent the Repurchase Price in cash, as provided above,
for paying to the Holder on the Repurchase Date,
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together with accrued and unpaid interest to the Repurchase Date payable with
respect to the Securities as to which the purchase right has been exercised;
provided, however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Repurchase Date shall be payable in cash to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Date according to the
terms and provisions of Section 307.
(d) Any Security which is to be repurchased only in part shall
be surrendered to the Trustee (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, containing
identical terms and conditions, each in an authorized denomination in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.
(e) All Securities delivered for repurchase shall be delivered
to the Trustee, the Paying Agent or any other agents (as shall be set forth in
the Company Notice) to be cancelled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 309.
SECTION 1404. CERTAIN DEFINITIONS.
For purposes of Articles Thirteen and Fourteen, the term "Person" shall
include any syndicate or group which would be deemed to be a "person" under
Section 13(d)(3) of the Exchange Act, as in effect on the date of the original
execution of this Indenture.
SECTION 1405. CONSOLIDATION, MERGER, ETC.
In the case of any reclassification, change, consolidation, merger,
combination, sale or conveyance to which Section 1311 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive shares of stock and other securities or property or assets (including
cash) which includes shares of Common Stock of the Company or common stock of
another person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the
aggregate fair market value of such shares of stock and other securities,
property and assets (including cash) (as determined by the Company, which
determination shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or combination or which acquires the
properties or assets (including cash) of the Company, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture, subject to the
approval of the Majority Holders (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental
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indenture) modifying the provisions of this Indenture relating to the right of
Holders to cause the Company to repurchase the Securities following a Change of
Control, including without limitation the applicable provisions of this Article
Fourteen and the definitions of the Common Stock and Change of Control, as
appropriate, and such other related definitions set forth herein as determined
in good faith by the Company (which determination shall be conclusive and
binding), to make such provisions apply to the common stock and the issue
thereof if different from the Company and Common Stock of the Company (in lieu
of the Company and the Common Stock of the Company).
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1501. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture or in any
Security, or because of the creation of any Indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer, or
director or subsidiary, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
--------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
BUDGET GROUP, INC.
By:
------------------------
Name:
Title:
Attest:
----------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------
Name:
Title:
Attest:
----------------------
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STATE OF __________) ss.:
COUNTY OF ________ )
On the ____ day of __________, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she is ____________________________ of BUDGET GROUP, INC., one of the
corporations described in and which said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
------------------------------
STATE OF ) ss.:
COUNTY OF )
On the ____ day of __________, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she is ____________________________ of __________________________, one
of the corporations described in and which executed the foregoing instrument;
that he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
-----------------------------
90
EXHIBIT A
[FORM OF SECURITIES]
BUDGET GROUP, INC.
[7.0% Convertible Subordinated Note, Series A, due 2007]
[6.85% Convertible Subordinated Note, Series B, due 2007]
CUSIP NO.: ______
No.___________ $________________
BUDGET GROUP, INC., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of _______________ Dollars (or so much thereof as shall not have
been prepaid) on April 29, 2007, and to pay interest (computed on the basis of a
360-day year of twelve 30-day months) on the unpaid principal balance thereof
from the date of this Note at the rate of [7.0%] [6.85%] per annum, payable
semiannually on [APRIL 29, AND OCTOBER 29], [JUNE 18 AND DECEMBER 18] in each
year, until such principal sum shall have become due and payable (whether at
maturity, at a date fixed for redemption or by declaration, acceleration or
otherwise), and to pay on demand interest (so computed) on any overdue principal
and premium, if any, and (to the extent permitted by applicable law) on any
overdue interest, at a rate per annum equal to the greater (determined on a
daily basis) of (i) [9.0%] [8.85%] and (ii) 2% above the rate of interest
publicly announced by Citibank, N.A. from time to time at its principal office
in The City of New York as its prime or base rate. Payments of principal,
premium, if any, and interest shall be made in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts in the manner and at the address designated
by the holder hereof and, in the absence of such designation, at said principal
office of Citibank, N.A.
This Note is one of a series of convertible subordinated notes of the
Company issued pursuant to the Indenture dated as of January 8, 1998, between
the Company and The Chase Manhattan Bank, as Trustee (the "Indenture"). The
holder of this Note is entitled to the benefits of the Indenture.
The Company may at its election prepay this Note, in whole or in part,
and under certain circumstances the Company may be required to offer to prepay
this Note, and the maturity hereof
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00
may be accelerated following an Event of Default, all as provided in the
Indenture, to which reference is made for the terms and conditions of such
provisions as to redemption and acceleration. This Note may also be converted
into shares of Class A Common Stock, par value $.01 per share, of the Company on
terms specified in the Indenture.
Payments of the principal of, premium, if any, and interest on this
Note are subordinate, to the extent specified in the Indenture, to all Senior
Indebtedness of the Company, as such term is defined in the Indenture. This Note
and the indebtedness of the Company in respect hereof are pari passu with the
Company's [7.0%] [6.85%] Convertible Subordinated Notes, Series [A] [B], due
2007.
Upon surrender of this Note for registration of transfer or exchange,
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note of the same series for a like principal amount will be
issued to, and, at the option of the holder, registered in the name of, the
transferee. The Company, the Trustee and any agent thereof may deem and treat
the person in whose name this Note is registered as the owner hereof for the
purpose of receiving payments of the principal of, premium, if any, and interest
hereon and for all other purposes whatsoever, whether or not this Note is
overdue, and the Company and the Trustee shall not be affected by any notice to
the contrary.
As provided in the Indenture, this Note shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized offices.
BUDGET GROUP, INC.
Dated:
By
-----------------------
Title:
Attest:
-------------------------
Name:
Title:
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[The following legend shall also appear on the face of each Global Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY
AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.]
[The following legend shall also appear on the face of each Global Security for
which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERENCED
IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.]
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ABBREVIATIONS
The following abbreviations, when used in the description of the fact of this
Security, shall be construed as through they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-______Custodian_______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and not as ______________________________
tenants in common (State)
Additional abbreviations may also be used
though not in the above list
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FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
The Chase Manhattan Bank,
as Trustee
By
----------------------
Authorized Officer
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FORM OF ELECTION OF HOLDER TO REQUIRE XXXXXXXXXX
0. Pursuant to Section 1401 of the Indenture, the undersigned
hereby elects to have this security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to
pay it or ___________ an amount in cash equal to 101% of the principal amount
to be repurchased (as set forth below), plus interest accrued to the Repurchase
Date, as provided in the Indenture.
Dated:
----------------------------------
----------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant to
Rule 17Ad- 15 under the Securities Exchange Act
of 1934.
-----------------------------------
Signature Guaranteed
Principal amount to be repurchased
(equal to an integral multiple of $1,000):
-------------------------------------
Remaining principal amount following such repurchase:
--------------------------
NOTICE: The signature to the foregoing election must correspond to the Name as
written upon the fact of this Security in every particular, without alteration
or any change whatsoever.
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FORM OF CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of $1,000, provided that the unconverted
portion of such principal amount is $1,000 or an integral multiple of $1,000 in
excess thereof) below designated, into Class A Shares in accordance with the
terms of the Indenture referred to in this Security, and directs that such
shares, together with a check in payment for any fractional share and any
Securities representing any unconverted principal amount hereof, be delivered to
and be registered in the name of the undersigned unless a different name has
been indicated below. If Class A Shares or Securities are to be registered in
the name of a Person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Dated:
------------------------- ---------------------------------
Fill in for registration of Class
A Shares if to be issued, and Securities
if to be delivered, other than to and in
the name of the registered holder. ---------------------------------
Signature(s)
---------------------------------
(Name) Signature(s) must be guaranteed by
an Eligible Guarantor Institution
with membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
---------------------------------
Signature Guaranteed
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FORM OF ASSIGNMENT
For value received ________________________ hereby sells(s), assign(s)
and transfer(s) unto ______________________ (Please insert social security or
other identifying number of assignee) the within Security, and hereby
irrevocably constitutes and appoints __________________________ as attorney to
transfer the said Security on the books of the Company, with full power of
substitution in the premises.
Dated: ----------------------------------
Signature(s)
Signature(s) must be guaranteed by
an Eligible Guarantor Institution
with membership in an approved
signature guarantee program pursuant
to Rule 17Ad-15 under the Securities
Exchange Act of 1934.
----------------------------------
Signature Xxxxxxxxxx
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