Exhibit (d)(2)
INDENTURE
Between
XXXXXXX & XXXXX, INC.
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
Dated as of February _____, 2003
8.0% CONVERTIBLE SUBORDINATED NOTES DUE 2008
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
SECTION 1.1. Definitions.........................................................................................1
SECTION 1.2. Compliance Certificates and Opinions................................................................6
SECTION 1.3. Form of Documents Delivered to Trustee..............................................................6
SECTION 1.4. Acts of Holders.....................................................................................7
SECTION 1.5. Notices, Etc., to Trustee and Company...............................................................7
SECTION 1.6. Notice to Holders; Waiver...........................................................................8
SECTION 1.7. Conflict with Trust Indenture Act...................................................................8
SECTION 1.8. Effect of Headings and Table of Contents............................................................8
SECTION 1.9. Successors and Assigns..............................................................................8
SECTION 1.10. Separability Clause.................................................................................9
SECTION 1.11. Benefits of Indenture...............................................................................9
SECTION 1.12. Governing Law.......................................................................................9
SECTION 1.13. Legal Holidays......................................................................................9
ARTICLE II NOTE FORMS.............................................................................................9
SECTION 2.1. Forms Generally.....................................................................................9
SECTION 2.2. Form of Face of Note...............................................................................10
SECTION 2.3. Form of Reverse of Note............................................................................11
SECTION 2.4. Form of Trustee's Certificate of Authentication....................................................14
ARTICLE III THE NOTES............................................................................................14
SECTION 3.1. Title and Terms....................................................................................14
SECTION 3.2. Denominations......................................................................................15
SECTION 3.3. Execution, Authentication, Delivery and Dating.....................................................15
SECTION 3.4. Temporary Notes....................................................................................15
SECTION 3.5. Registration, Registration of Transfer and Exchange................................................16
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Notes........................................................17
SECTION 3.7. Payment of Interest; Interest Rights Preserved.....................................................17
SECTION 3.8. Persons Deemed Owners..............................................................................19
SECTION 3.9. Cancellation.......................................................................................19
SECTION 3.10. Computation of Interest............................................................................19
SECTION 3.11. CUSIP Number.......................................................................................19
ARTICLE IV SATISFACTION AND DISCHARGE............................................................................19
SECTION 4.1. Satisfaction and Discharge of Indenture............................................................19
SECTION 4.2. Application of Trust Money.........................................................................20
(i)
ARTICLE V REMEDIES...............................................................................................21
SECTION 5.1. Events of Default..................................................................................21
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.................................................22
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee....................................23
SECTION 5.4. Trustee May File Proofs of Claim...................................................................24
SECTION 5.5. Trustee May Enforce Claims Without Possession of Notes.............................................24
SECTION 5.6. Application of Money Collected.....................................................................24
SECTION 5.7. Limitation on Suits................................................................................25
SECTION 5.8. Right of Holders to Receive Principal and Interest and to Convert..................................25
SECTION 5.9. Restoration of Rights and Remedies.................................................................25
SECTION 5.10. Rights and Remedies Cumulative.....................................................................26
SECTION 5.11. Delay or Omission Not Waiver.......................................................................26
SECTION 5.12. Control by Holders.................................................................................26
SECTION 5.13. Waiver of Past Defaults............................................................................26
SECTION 5.14. Undertaking for Costs..............................................................................27
SECTION 5.15. Waiver of Stay, Usury or Extension Laws............................................................27
ARTICLE VI THE TRUSTEE...........................................................................................27
SECTION 6.1. Certain Duties and Responsibilities................................................................27
SECTION 6.2. Notice of Defaults.................................................................................28
SECTION 6.3. Certain Rights of Trustee..........................................................................29
SECTION 6.4. Not Responsible For Recitals or Issuance of Notes..................................................29
SECTION 6.5. May Hold Notes.....................................................................................30
SECTION 6.6. Money Held In Trust................................................................................30
SECTION 6.7. Compensation and Reimbursement.....................................................................30
SECTION 6.8. Corporate Trustee Required; Eligibility; Conflicting Interest......................................31
SECTION 6.9. Resignation and Removal; Appointment of Successor..................................................31
SECTION 6.10. Acceptance of Appointment by Successor.............................................................32
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business........................................32
SECTION 6.12. Preferential Collection of Claims Against Company..................................................33
SECTION 6.13. Appointment of Authenticating Agent................................................................33
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................34
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders..........................................34
SECTION 7.2. Preservation of Information Communications to Holders..............................................35
SECTION 7.3. Reports by Trustee.................................................................................35
SECTION 7.4. Reports by Company.................................................................................35
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER.......................................................36
SECTION 8.1. Company May Consolidate, Etc., Only On Certain Terms...............................................36
SECTION 8.2. Successor Corporation Substituted..................................................................36
(ii)
ARTICLE IX SUPPLEMENTAL INDENTURE................................................................................37
SECTION 9.1. Supplemental Indentures without Consent of Holders................................................37
SECTION 9.2. Supplemental Indentures with Consent of Holders...................................................37
SECTION 9.3. Execution of Supplemental Indentures..............................................................38
SECTION 9.4. Effect of Supplemental Indentures.................................................................38
SECTION 9.5. Conformity with Trust Indenture Act...............................................................38
SECTION 9.6. Reference in Notes to Supplemental Indentures.....................................................38
ARTICLE X COVENANTS..............................................................................................39
SECTION 10.1. Payment of Principal and Interest.................................................................39
SECTION 10.2. Maintenance of Office or Agency...................................................................39
SECTION 10.3. Money for Note Payments to be Held in Trust.......................................................39
SECTION 10.4. Corporate Existence...............................................................................40
SECTION 10.5. Maintenance of Properties.........................................................................40
SECTION 10.6. Payment of Taxes and Other Claims.................................................................41
SECTION 10.7. Waiver of Certain Covenants.......................................................................41
ARTICLE XI REDEMPTION OF NOTES...................................................................................41
SECTION 11.1. Right of Redemption...............................................................................41
SECTION 11.2. Applicability of Article..........................................................................41
SECTION 11.3. Election to Redeem; Notice to Trustee.............................................................41
SECTION 11.4. Selection by Trustee of Notes to be Redeemed......................................................41
SECTION 11.5. Notice of Redemption..............................................................................42
SECTION 11.6. Deposit of Redemption Price.......................................................................43
SECTION 11.7. Notes Payable on Redemption Date..................................................................43
SECTION 11.8. Notes Redeemed in Part............................................................................43
ARTICLE XII CONVERSION OF NOTES..................................................................................43
SECTION 12.1. Conversion Privilege and Conversion Price.........................................................43
SECTION 12.2. Exercise of Conversion Privilege..................................................................44
SECTION 12.3. Fractions of Shares...............................................................................44
SECTION 12.4. Adjustment of Conversion Price....................................................................45
SECTION 12.5. Notice of Adjustment of Conversion Price..........................................................53
SECTION 12.6. Notice of Certain Corporate Action................................................................54
SECTION 12.7. Company to Reserve Common Shares..................................................................54
SECTION 12.8. Taxes on Conversion...............................................................................54
SECTION 12.9. Covenant as to Common Shares......................................................................55
SECTION 12.10. Provisions in Case of Consolidation, Merger or Conveyance or Transfer of Properties and
Assets............................................................................................55
SECTION 12.11. Responsibility of Trustee.........................................................................55
ARTICLE XIII SUBORDINATION OF NOTES..............................................................................56
SECTION 13.1. Notes Subordinate to Senior Indebtedness..........................................................56
(iii)
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over of Proceeds Upon Dissolution,
Etc................................................................................................56
SECTION 13.3. Trustee to Effectuate Subordination................................................................58
SECTION 13.4. Trustee Not Charged with Knowledge of Prohibition..................................................58
SECTION 13.5. Rights of Trustee as Holder of Senior Indebtedness.................................................59
SECTION 13.6. Article Applicable to Paying Agent.................................................................59
ARTICLE XIV RIGHT TO REQUIRE REPURCHASE..........................................................................59
SECTION 14.1. Right to Require Repurchase........................................................................59
SECTION 14.2. Notice; Method of Exercising Repurchase Right......................................................59
SECTION 14.3. Deposit of Repurchase Price........................................................................60
SECTION 14.4. Notes Not Repurchased on Repurchase Date...........................................................60
SECTION 14.5. "Change in Control" Defined........................................................................60
(iv)
INDENTURE dated as of February ___, 2003, between XXXXXXX & XXXXX,
INC., a corporation duly organized and existing under the laws of the State of
Ohio (herein called the "COMPANY"), having its principal office at 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, and U.S. BANK NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United
States of America, as Trustee (herein called the "TRUSTEE").
The Company has duly authorized the creation of an issue of its Notes
(herein called the "NOTES") of substantially the tenor and amount hereinafter
set forth and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture.
All things necessary to make the Notes, 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 their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act (as hereinafter defined), either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles; and
(d) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT" when used with respect to any Holder has the meaning specified in
Section 1.4.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and
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the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or in Cincinnati, Ohio are authorized or obligated by law or executive order to
be closed.
"CHANGE IN CONTROL" has the meaning specified in Section 14.5.
"CLOSING PRICE" has the meaning specified in Section 14.5, except for
purposes of Section 12.4 where it has the meaning set forth in such Section.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after 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 SHARE", as applied to the capital shares of any corporation,
shall mean the capital shares of any class which has no preference in respect of
dividends or other distributions of assets or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of such
corporation and which is not subject to redemption by such corporation;
provided, however, that, subject to the provisions of Section 12.10, shares
issuable on conversion of Notes shall include only shares of the class
designated as Common Shares of the Company at the date of the execution of this
instrument or shares of any class or classes resulting from any reclassification
or reclassifications thereof which have no preference in respect of dividends or
other distributions of assets or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; provided further that,
if at any time there shall be more than one such resulting class, the shares of
each such class then so issuable shall be substantially in the proportion which
the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
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"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President and by its Chief Financial Officer, its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in
Cincinnati, Ohio at which at any particular time its corporate trust business
shall be administered, which office at the time of the execution of this
indenture is located at 000 Xxxxxx Xxxxxx, XX 0000, Xxxxxxxxxx, Xxxx 00000,
Attention of Corporate Trust Administration.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"CURRENT MARKET PRICE" has the meaning specified in Section 14.5,
except for purposes of Section 12.4 where it has the meaning set forth in such
Section.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings
specified in Section 3.5.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"HOLDER" means a Person in whose name a Note is registered in the Note
Register.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Notes.
"MATURITY" when used with respect to any Note means the date on which
the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, the President or a Vice President and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel acceptable to
the Trustee, who may be counsel for, or employed by, the Company.
"OUTSTANDING" when used with respect to Notes means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
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(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver or taken any other action
hereunder, Notes owned by the Company or any other obligor upon the Notes 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 request, demand, authorization,
direction, notice, consent, waiver or other action, only Notes which the Trustee
has actual knowledge of being so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes 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 or interest on any Notes on behalf of the Company, which may
include the Company or any Affiliate of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.6 in exchange for or in lieu of all
or a portion of a mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as such mutilated, destroyed, lost or stolen Note or
portion thereof.
"REDEMPTION DATE", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Note 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 February 15 or August 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 14.1.
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"REPURCHASE PRICE" has the meaning specified in Section 14.1.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor department) of
the Trustee, including, without limitation, any Vice President, any Senior Trust
Officer, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on and other amounts due on any indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, incurred, assumed
or guaranteed by the Company, for money borrowed from others (including, for
this purpose, all obligations under, respecting or constituting capitalized
leases or purchase money indebtedness) or in connection with the acquisition by
the Company or a Subsidiary of any other business or entity, or in respect of
letters of credit or bid, performance or surety bonds issued for the account or
on the credit of the Company or a Subsidiary, and, in each case, all renewals,
extensions and refundings thereof, other than: (a) any such indebtedness as to
which, in the instrument creating or evidencing the same, it is provided that
such indebtedness is not superior in right of payment to the Notes; (b)
indebtedness of the Company to any Affiliate of the Company; (c) the Notes; and
(d) indebtedness under the Company's outstanding 6.5% Convertible Subordinated
Notes due 2003, which shall rank pari passu with the Notes.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY", when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable; provided, however, that, if such date shall not be a
Business Day, then the Stated Maturity shall be the next Business Day.
"SUBSIDIARY" means a corporation more than 50% of the outstanding
voting shares of which are owned, directly or indirectly, by the Company or by
one or more other Subsidiaries or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "VOTING SHARES" means capital
shares or shares of capital stock which ordinarily have voting power for the
election of directors, whether at all times or only so long as no senior class
of capital shares or capital stock has such voting power by reason of any
contingency.
"TRADING DAY" has the meaning specified in Section 14.5, except for
purposes of Section 12.4 where it has the meaning set forth in such Section.
"TRIGGER EVENT" has the meaning specified in Section 12.4.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990 and as in force at the date as of
which this instrument was executed, except as provided in Section 9.5.
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"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.
"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".
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
delivered pursuant to Section 7.4(b) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. 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 Persons 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 his certificate or opinion is based are
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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 1.4. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders may be embodied 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 herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein 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 6.1)
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 by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements 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 Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note 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 Note.
SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
and delivered by hand or mailed, first-class, postage prepaid, to the
Trustee at its Corporate Trust Office, or
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(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered by hand or 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, or
(c) the Company by the Trustee or the Trustee by the Company
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if transmitted by facsimile transmission to
the Company at (000) 000-0000 or to the Trustee at (000) 000-0000 (or
to such other facsimile transmission number previously furnished in
writing to the Company by the Trustee or to the Trustee by the Company)
and in each case confirmed by a copy sent to the Company or to the
Trustee, as the case may be, by guaranteed overnight courier; each such
number may be changed from time to time or at any time with notice from
the Company to the Trustee or from the Trustee to the Company.
SECTION 1.6. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and delivered by hand
or mailed, first-class, postage prepaid, to each Holder affected by such event,
at his address as it appears in the Note Register, not later than the latest
date and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. 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 1.7. CONFLICT WITH TRUST INDENTURE ACT. If and to the extent
that any provision hereof limits, qualifies or conflicts with the duties imposed
by, or with another provision (an "INCORPORATED PROVISION") included in this
Indenture by operation of, any of Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision shall control.
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
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SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of Ohio.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repurchase Date or Stated Maturity of any Note or the
last date on which a Holder has the right to convert his Notes shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment of interest or principal or Repurchase Price or conversion of
the Notes 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 conversion; provided that no additional interest shall accrue on
any amount that would otherwise be payable on such Interest Payment Date,
Redemption Date, Repurchase Date or Stated Maturity, as the case may be, for the
period from and after such Interest Payment Date, Redemption Date, Repurchase
Date or Stated Maturity, as the case may be, to such Business Day if such
payment is made or duly provided for on such Business Day.
ARTICLE II
NOTE FORMS
SECTION 2.1. FORMS GENERALLY. The Notes and the Trustee's certificates
of authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, including forms of conversion
and forms of assignment, if requested by the Company, 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
or as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes. The Company shall furnish
any such legends or endorsements to the Trustee in writing.
The definitive Notes shall be printed, lithographed or engraved or
produced by any combination of these methods on steel-engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Notes may be listed, all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
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SECTION 2.2. FORM OF FACE OF NOTE.
XXXXXXX & XXXXX, INC.
8.0% CONVERTIBLE SUBORDINATED NOTE DUE 2008
No. __________ $__________
XXXXXXX & XXXXX, INC., an Ohio corporation (hereinafter called the
"COMPANY", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or _______________ registered assigns the principal sum of
_______________ dollars on January 31, 2008, and to pay interest thereon from
_______________, 2003, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on March 1 and
September 1 in each year, commencing March 1, 2003, at the rate of 8.0% per
annum, until the principal hereof is paid or made available for payment.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be February 15 or August 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for on the due date for such payment will
forthwith cease to be payable to the Holder on such Interest Payment Date and
may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice of which shall be given to the Holders of Notes not less than ten days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Payment of the principal
of and interest on this Note will be made at the office or agency of the Company
maintained for that purpose in The City of New York or at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, 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 Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
XXXXXXX & XXXXX, INC.
By: ____________________________
Title: _____________________
Attest:
______________________________________
Title: _______________________________
SECTION 2.3. FORM OF REVERSE OF NOTE. This Note is one of a duly
authorized issue of Notes of the Company designated as its 8.0% Convertible
Subordinated Notes Due 2008 (herein called the "NOTES"), limited in aggregate
principal amount to $40,000,000, issued under an Indenture dated as of February
_____, 2003 (herein called the "INDENTURE"), between the Company and U.S. Bank
National Association, as Trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Indebtedness and the Holders
of the Notes and of the terms upon which the Notes are authenticated and
delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Note is entitled, at such Holder's option, at any time on or
before the close of business on January 31, 2008, or, in case this Note or a
portion hereof is called for redemption, then in respect of this Note or such
portion hereof until and including, but (unless the Company defaults in making
the payment due upon redemption) not after, the close of business on the
Business Day prior to the Redemption Date, to convert this Note (or any portion
of the principal amount hereof which is $1,000 or any integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable Common Shares (calculated as to each conversion to the nearest
1/100 of a share) of the Company at a conversion price equal to $22.50 aggregate
principal amount of Notes for each Common Share (or at the current adjusted
conversion price if an adjustment has been made as provided in the Indenture) by
surrender of this Note, duly endorsed or assigned to the Company or in blank, at
the office or agency of the Company maintained for that purpose in The City of
New York or at any other office or agency maintained by the Company for such
purpose, accompanied by written notice to the Company that the Holder hereof
elects to convert this Note or, if less than the entire principal amount hereof
is to be converted the portion hereof to be converted, and, in case such
surrender shall be made during 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 (unless this Note or the portion hereof
being converted has been called for redemption on a
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Redemption Date within such period), also accompanied by payment in New York
Clearing House 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
this Note then being converted. Subject to the aforesaid requirement for payment
and, in the case of a conversion after the Regular Record Date next preceding
any Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Note (or any Predecessor Note) of record at such
Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made on
conversion for interest accrued hereon or for dividends on the Common Shares
issued on conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture. The conversion
price is subject to adjustment as provided in the Indenture. In addition, the
Indenture provides that, in case of certain consolidations or mergers to which
the Company is a party or the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, the Indenture shall be
amended, without the consent of any Holders of Notes, so that this Note, if then
outstanding, will be convertible thereafter, during the period this Note shall
be convertible as specified above, only into the kind and amount of securities,
cash and other property receivable upon the consolidation, merger, conveyance or
transfer by a holder of the number of Common Shares of the Company into which
this Note might have been converted immediately prior to such consolidation,
merger, conveyance or transfer, assuming such holder of Common Shares of the
Company failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance or transfer (provided that, if the kind or
amount of securities, cash and other property so receivable is not the same for
each nonelecting Common Share of the Company, then the kind and amount of
securities, cash and other property so receivable by each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the nonelecting shares).
The Notes are subject to redemption upon not less than 30 nor more than
60 days' notice by mail at any time on or after March 1, 2004 as a whole or in
part, at the election of the Company, at a Redemption Price: (a) on or after
March 1, 2004 but prior to March 1, 2005, equal to 102% of the principal amount,
and (b) on or after March 1, 2005, equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture. The Company may not redeem any
Notes prior to March 1, 2004.
In certain circumstances involving the occurrence of a Change in
Control (as defined in the Indenture), the Holder hereof shall have the right to
require the Company to repurchase this Note at 100% of the principal amount
hereof, together with accrued interest to the Repurchase Date, but interest
installments whose Stated Maturity is on or prior to such Repurchase Date will
be payable to the Holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture. In connection with the exercise
of the repurchase right by a Holder prior to a Redemption Date, a Holder's right
to exercise such repurchase right shall terminate at the close of business on
the Business Day prior to the Redemption Date.
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In the event of redemption, repurchase or conversion of this Note in
part only, a new Note or Notes for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by the Notes is, to the extent and in the
manner set forth in the Indenture, expressly subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness, as defined
in the Indenture, and this Note is issued subject to such provisions of the
Indenture, and each Holder of this Note, by accepting the same, agrees to and
shall be bound by such provisions and authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than two-thirds in aggregate principal amount of the Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding, on
behalf of the Holder of all the Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
Except with respect to the rights of the holders of Senior Indebtedness
set forth in the Indenture and in this Note, no reference herein to the
Indenture and no provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times, place and rate, and
in the coin or currency, herein prescribed or to convert this Note as provided
in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company maintained for that purpose in The City of New York or at any other
office or agency maintained by the Company for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Note Registrar duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Notes,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain
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limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to the presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 2.4. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. This is
one of the Notes referred to in the within-mentioned Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: _____________________________________
Authorized Signatory
ARTICLE III
THE NOTES
SECTION 3.1. TITLE AND TERMS. The aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture is limited to
$40,000,000 except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
3.4, 3.5, 3.6, 9.6, 11.8, 12.2 or 14.2(c).
The Notes shall be known and designated as the "8.0% Convertible
Subordinated Notes Due 2008" of the Company. Their Stated Maturity shall be
January 31, 2008, and they shall bear interest at the rate of 8.0% per annum,
from _______________, 2003, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semiannually on March 1 and September 1, commencing March 1, 2003, until the
principal thereof is paid or made available for payment.
The principal of and interest on the Notes shall be payable at the
office or agency of the Company maintained for such purpose in The City of New
York and at any other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
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check mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.
The Notes shall be redeemable as provided in Article XI.
The Notes shall be convertible into Common Shares of the Company as
provided in Article XII.
The Notes shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
The Notes shall become subject to a Holder's right of repurchase in the
event of a Change in Control as provided in Article XIV.
SECTION 3.2. DENOMINATIONS. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Notes
shall be executed on behalf of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Notes may be manual or facsimile.
Notes 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 Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 3.4. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and
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other variations as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes, at any office or agency of the Company
designated pursuant to Section 10.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 3.5. 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 being herein sometimes referred
to as the "NOTE REGISTER") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. The Trustee is hereby appointed "Note Registrar" (in such
capacity, together with its successors as such, the "NOTE REGISTRAR") for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at an office or
agency of the Company, the Company shall execute, and the Trustee shall register
on the Note Register and shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
any authorized denominations, of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note 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, the Trustee and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, 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 Notes, other than an exchange
pursuant to Section 3.4, 9.6, 11.8, 12.2 or 14.2(c) not involving any transfer.
Neither the Company nor the Trustee or Note Registrar shall be required
(a) to issue, authenticate, register the transfer of, or exchange, any Note
during a period beginning at the
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opening of business 15 days before the day of the mailing of a notice of
redemption of Notes selected for redemption under Section 11.4 and ending at the
close of business on the day of such mailing or (b) to register the transfer of
or exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If any
mutilated Note is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Note and (b) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes 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 Notes.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest
on any Note 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 Note
(or one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest. The Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such interest in immediately available funds 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 interest as in this clause provided.
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Any interest on any Note 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 (a) or (b) below.
(a) The Company may elect to make payment of Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) 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
Note 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 a trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than ten days prior to the date of the proposed payment and not less
than ten 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 Note
Register, not less than ten days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
In the case of any Note which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Note whose Maturity is prior to such Interest Payment Date), installments of
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name the Note (or one or more Predecessor Notes) is registered
at the close of
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business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, in the case of any Note which is converted,
installments of interest whose Stated Maturity is after the date of conversion
of such Note shall not be payable.
SECTION 3.8. PERSONS DEEMED OWNERS. Prior to due presentment of a Note
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 Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 3.7) interest on such Note and for all
other purposes whatsoever, whether or not such Note 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 3.9. CANCELLATION. All Notes surrendered for payment,
redemption, 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 canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be destroyed and a certificate of destruction
shall be delivered to the Company by the Trustee.
SECTION 3.10. COMPUTATION OF INTEREST. Interest on the Notes shall be
computed on the basis of a 360 day year of twelve 30-day months.
SECTION 3.11. CUSIP NUMBER. The Company in issuing Notes 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 Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. 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 Notes herein expressly
provided for), and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(i) all Notes theretofore authenticated and delivered
(other than (A) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.6 and (B) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by
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the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the
Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for
that purpose funds sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit
(in the case of Notes which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be and, in the case
of (B) or (C) above, has delivered to the Trustee an Opinion of Counsel
stating that (1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (2) since the
date of the Indenture, there has been a change in the applicable United
States Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders
of the Notes will not recognize income, gain or loss for United States
Federal income tax purposes as a result of such satisfaction and
discharge and will be subject to United States Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such satisfaction and discharge had not occurred;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and the obligations
of the Trustee to any Authenticating Agent under Section 6.13 shall survive.
SECTION 4.2. APPLICATION OF TRUST MONEY. All money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Notes 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
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Persons entitled thereto, of the principal and interest for whose payment such
money has been deposited with the Trustee. All moneys deposited with the Trustee
pursuant to Section 4.1 (and held by it or any Paying Agent) for the payment of
Notes subsequently converted shall be returned to the Company upon receipt by
the Trustee of an Officers' Certificate.
ARTICLE V
REMEDIES
SECTION 5.1. 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
XIII or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of any Note at its
Maturity; or
(c) default in the payment of the Repurchase Price in respect
of any Note on the Repurchase Date therefor in accordance with the
provisions of Article XIV; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) a default under any bond, note, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Company, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in $10,000,000 or more of
such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or acceleration
having been rescinded or annulled, within a period of 30 days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Notes a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions
of Sections 6.1 and 6.2, the Trustee shall not be deemed to have
knowledge of such default unless either (i) a Responsible Officer of
the Trustee shall have actual knowledge of such default or (ii) the
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Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(f) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Notes may declare the principal of all the Notes to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal shall become
immediately due and payable.
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 hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Notes, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequence if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on all
Notes;
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(ii) the principal of any Notes which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the
rate borne by the Notes; and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any installment of
interest on any Notes when such interest becomes due and payable and
such default continues for a period of 30 days;
(b) default is made in the payment of the principal of any
Note at the Maturity thereof; or
(c) default is made in the payment of the Repurchase Price in
respect of any Note on the Repurchase Date therefor in accordance with
the provisions of Article XIV;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and interest, with interest upon the overdue principal and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Notes; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of 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 Notes 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 Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion 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,
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whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4. 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 Notes or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes 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,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
after deduction of its charges and expenses;
and any 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 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 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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 provisions 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 Notes in respect of which such judgment has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED. Subject to Article XII,
any money collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
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(a) to the payment of all amounts due the Trustee under
Section 6.7;
(b) to the payment of the amounts then due and unpaid for
principal of and interest on the Notes 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 Notes for principal and interest, respectively; and
(c) to the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
the same, or as a court of competent jurisdiction may determine.
SECTION 5.7. LIMITATION ON SUITS. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
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 provisions 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 5.8. RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST AND TO
CONVERT. Notwithstanding any other provision in this Indenture, but subject to
Article XIII, the Holder of any Note shall have the right to receive payment of
the principal of and (subject to Section 3.7) interest on such Note on the
Stated Maturity expressed in such Note (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date) and to convert such Note
in accordance with Article XII and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.9. 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
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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 5.10. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
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 hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Notes 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:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) such direction shall not be unduly prejudicial to the
other security holders or involve the Trustee in personal liability and
the Trustee shall not have determined that it does not have sufficient
indemnity against any loss or expense connected to such action; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Notes may on behalf of the
Holders of all the Notes waive any past default hereunder and its consequences,
except a default:
(a) in the payment of the principal of or interest on any
Note; or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
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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.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Notes or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or interest on any Note on or after the Stated Maturity expressed in such Note
(or, in the case of redemption or repurchase, on or after the Redemption Date or
Repurchase Date) or for the enforcement of the right to convert any Note in
accordance with Article XII.
SECTION 5.15. WAIVER OF STAY, USURY 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 whatever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during the
continuance of an Event of Default:
(i) 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
(ii) in the absence of willful misconduct 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 case of any such certificates or opinions
which by any provisions 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.
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(b) In case 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 his 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:
(i) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance
with the direction of the Holders of a majority in principal
amount of the Outstanding Notes 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
(iv) 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 6.2. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Note Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of or interest on any Note, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders; provided further that, in the case of
any default of the character specified in Section 5.1(d), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "DEFAULT" means any event which is, or
after notice or lapse of time or both would become, an Event of Default. The
Trustee shall not be deemed to have knowledge of any default other than those
described in Sections 5.1(a), (b) and (c) unless a Responsible Officer of the
Trustee has actual knowledge of such default.
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SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note 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 mentioned herein
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 be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
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) subject to Section 6.1(b), 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
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, note,
security 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
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, 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
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Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company or any Paying Agent other than the Trustee of Notes
or the proceeds thereof.
SECTION 6.5. MAY HOLD NOTES. The Trustee, any Authenticating Agent, any
Paying Agent, any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 6.12 and to Section 310(b) of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other
agent.
Subject to Section 310(b) of the Trust Indenture Act, 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 Trustee.
SECTION 6.6. 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 on with the Company.
SECTION 6.7. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(a) to pay to the Trustee from time to time such compensation
as may be agreed upon by the Trustee and the Company from time to time
for all services rendered by it hereunder (which compensation shall not
be limited by any provisions of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents, counsel and other persons not regularly in its employ), except
to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) 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 such
person's 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. The obligations of the Company under this Section 6.7
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 in this Section 6.7, the Trustee shall have a lien prior to
the Notes on all money or property held in trust to pay principal of or
interest on particular Notes and such lien shall survive the
satisfaction and discharge of this Indenture and any other termination
of this Indenture including any termination under
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any bankruptcy law. When the Trustee incurs expenses or renders
services in connection with an Event of Default under Section 5.1(f) or
5.1(g), the Holders by their acceptance of the Notes hereby agree that
such expenses and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law.
"Trustee" for the purposes of this Section 6.7 shall include any
predecessor Trustee, but the negligence or willful misconduct of any
Trustee shall not affect the indemnification of any other Trustee.
SECTION 6.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTEREST. The Trustee shall at all times satisfy the eligibility requirements of
Section 310 of the Trust Indenture Act and shall have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination by
Federal or State authority. If such corporation 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 corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. If the Trustee has or shall
acquire any conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall comply with the relevant provisions of the Trust Indenture Act
and this Indenture.
SECTION 6.9. 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 6.10.
(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 Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(ii) the Trustee shall become incapable of acting or
shall be adjudged 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 5.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of
himself and all others
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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 Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede 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 Note
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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 6.10. 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 request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges pursuant to
Section 6.7, 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. Any retiring trustee shall, nevertheless, retain a lien on
all property or funds held or collected by such trustee to secure any amounts
then due pursuant to the provisions of Section 6.7.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Company shall cause such successor Trustee to mail notice of
succession of such Trustee hereunder to all Holders of Notes as the names and
addresses of such Holders appear on the Note Register.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article and
qualified under Section 310(b) of the Trust Indenture Act.
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation or national banking association into which the Trustee
may be merged or converted
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or with which it may be consolidated, or any corporation or national banking
association 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, shall be the successor of the
Trustee hereunder; provided such corporation or national banking association
shall be otherwise eligible under this Article and qualified under Section
310(b) of the Trust Indenture Act, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any Notes
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 Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Notes.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to Section 311(a) and (b) of the Trust Indenture Act. Any
Trustee that has resigned or been removed shall be subject to Section 311(a) and
(b) of the Trust Indenture Act to the extent indicated therein.
SECTION 6.13. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original issue,
exchange, registration of transfer or partial redemption or repurchase thereof
or pursuant to Section 3.6, and Notes 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 Notes 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 or national banking association into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated or any corporation or national banking association 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 or national banking association
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.
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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 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 Note 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 herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
his Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: ___________________________
As Authenticating Agent
By: ___________________________
Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(b) 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
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of a date not more than 15 days prior to the time such list is
furnished; excluding from any such list names and addresses
received by the Trustee in its capacity as Note Registrar.
SECTION 7.2. 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 contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same, 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 the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 312 of the Trust Indenture Act regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 7.3. REPORTS BY TRUSTEE. (a) Within 60 days after May 15 of
each year commencing with the year 2003, the Trustee shall transmit to the
Holders of Notes, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, a brief report if required by Section 313(a) of the
Trust Indenture Act, dated as of such May 15. The Trustee also shall comply with
Section 313(b) of the Trust Indenture Act and shall transmit to Holders, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
all reports, if any, as may be required pursuant to the Trust Indenture Act.
(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
Notes are listed, with the Commission and with the Company. The Company will
notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY. The Company shall:
(a) file with the Trustee and the Commission, and transmit to
Holders, such information, documents and reports, and such summaries
thereof and copies of portions thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; provided that 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 shall be so required to be filed with the Commission; and
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(b) file with the Trustee within 120 days after the end of
each fiscal year of the Company (which on the date hereof is the 12
months ending August 31) commencing with the fiscal year ending August
31, 2003, a certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company, stating whether or not, to the knowledge of the signer, the
Company has complied with all conditions and covenants on its part
contained in this Indenture, and, if the signer has obtained knowledge
of any default by the Company in the performance, observance or
fulfillment of any such condition or covenant, specifying each such
default and the nature thereof. For the purpose of this Section 7.4,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
interest on all the Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed and
shall have provided for conversion rights in accordance with Section
12.10;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer 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 8.2. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.1, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Notes.
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ARTICLE IX
SUPPLEMENTAL INDENTURE
SECTION 9.1. 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:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Notes; or
(b) 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
(c) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Section 12.10; or
(d) 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, provided such action shall not
adversely affect the interests of the Holders in any material respect;
or
(e) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect or maintain
the qualification of this Indenture under the Trust Indenture Act, or
under any similar Federal statute hereafter enacted.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than two-thirds in principal amount of the
Outstanding Notes, by 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, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any principal amount payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Note or any principal amount or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or adversely affect the right to convert any Note as provided in
Article XII, or adversely affect the right to require the Company to
repurchase the Notes as provided in Article XIV or modify the
provisions of this
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Indenture with respect to the subordination of the Notes in a manner
adverse to the Holders, or
(b) reduce the percentage in principal amount of the
Outstanding Notes 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 provided for in this
Indenture, or
(c) modify any of the provisions of this Section, Section 5.13
or Section 10.7, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby.
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 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) 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. 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.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be, and
shall be deemed to be, modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.6. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
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ARTICLE X
COVENANTS
SECTION 10.1. PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly
and punctually pay or cause to be paid by no later than one Business Day prior
to the date such payment is due the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture.
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in The City of New York an office or agency where Notes may be
presented or surrendered for payment or repurchase, where Notes may be
surrendered for registration of transfer or exchange, where Notes may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside The City of New York) where the Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 10.3. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent it will, on or before each
due date of the principal of or interest on any of the Notes, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will
prior to each due date of the principal of or interest on any Notes, deposit
with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
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:
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(a) hold all sums held by it for the payment of the principal
of or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal or interest; and
(c) 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 in trust 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 or interest on any
Note and remaining unclaimed for two years after such principal 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 Note 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; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.4. CORPORATE EXISTENCE. Subject to Article VIII, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.5. MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order in accordance with normal
industry practice and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from
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discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
SECTION 10.6. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the Company,
and (b) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.7. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.4 to 10.6, inclusive, if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Notes
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.
ARTICLE XI
REDEMPTION OF NOTES
SECTION 11.1. RIGHT OF REDEMPTION. The Notes may be redeemed at the
election of the Company, as a whole or from time to time in part, at any time on
or after March 1, 2004, at the Redemption Price specified in the form of Note
hereinbefore set forth for redemptions, together with accrued interest to the
Redemption Date; provided, however, that the Company may not redeem any of the
Notes pursuant to such option prior to March 1, 2004.
SECTION 11.2. APPLICABILITY OF ARTICLE. Redemption of Notes, at the
election of the Company or otherwise as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 11.3. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Notes pursuant to Section 11.1 shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company of
less than all the Notes, the Company shall, at least 60 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 Notes to be redeemed.
SECTION 11.4. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If less
than all the Notes are to be redeemed the particular Notes to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Notes not previously called for redemption, pro rata or by
lot or by such other method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to $1,000
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or any integral multiple thereof) of the principal amount of Notes of a
denomination larger than $1,000.
If any Note selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Note so
selected, the converted portion of such Note shall be deemed (so far as may be)
to be the portion selected for redemption. Notes which have been converted
during a selection of Notes 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 the Note Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Note which has been or is to be redeemed.
SECTION 11.5. NOTICE OF REDEMPTION. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Notes to be redeemed, at such
Holder's address appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
(unless the Redemption Date shall be an Interest Payment Date) interest accrued
and unpaid to the Redemption Date, will become due and payable upon each such
Note to be redeemed and that interest thereon will cease to accrue on and after
said date;
(5) the conversion price, the date on which the right to convert the
principal of the Notes to be redeemed will terminate and the place or places
where such Notes may be surrendered for conversion; and
(6) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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SECTION 11.6. DEPOSIT OF REDEMPTION PRICE. 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) an
amount of money sufficient to pay the Redemption Price of and, subject to
Section 11.7, accrued interest on all the Notes which are to be redeemed on that
date other than any Notes called for redemption on that date which have been
converted prior to the date of such deposit.
If any Note 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 Note shall (subject to any right of the Holder of such
Note or any Predecessor Note to receive interest as provided in the last
paragraph of Section 3.7) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 11.7. NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Notes 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 Redemption Price and accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Note.
SECTION 11.8. NOTES REDEEMED IN PART. Any Note which is to be redeemed
only in part shall be surrendered at any office or agency of the Company
designated for that purpose (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company, the Trustee and the Note Registrar 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
Note without service charge, a new Note or Notes, 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 Note so surrendered.
ARTICLE XII
CONVERSION OF NOTES
SECTION 12.1. CONVERSION PRIVILEGE AND CONVERSION PRICE. Subject to and
upon compliance with the provisions of this Article, at the option of the Holder
thereof, any Note or any portion of the principal amount thereof which is $1,000
or an integral multiple of $1,000 may be converted, at any time and from time to
time except as provided herein, at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable Common Shares (calculated as
to each conversion to the nearest 1/100 of a share) of the Company, at the
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conversion price, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of business on
January 31, 2008. In case a Note or portion thereof is called for redemption,
such conversion right in respect of the Note or portion so called shall expire
at the close of business on the Business Day preceding the Redemption Date,
unless the Company defaults in making the payment due upon redemption.
The price at which Common Shares shall be delivered upon conversion
(herein called the "CONVERSION PRICE") shall be initially $22.50 per Common
Share. The Conversion Price shall be adjusted in certain instances as provided
in Section 12.4.
SECTION 12.2. EXERCISE OF CONVERSION PRIVILEGE. In order to exercise
the conversion privilege, the Holder of any Note to be converted shall surrender
such Note, duly endorsed or assigned to the Company or in blank, at any office
or agency of the Company maintained for that purpose, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Note or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. In connection with the exercise
of the conversion privilege by a Holder prior to a Redemption Date, a Holder's
right to exercise his conversion privilege shall terminate at the close of
business on the Business Day prior to the Redemption Date. Notes surrendered for
conversion during 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 shall (except in the case of Notes or portions thereof
which have been called for redemption on a Redemption Date within such period)
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 Notes being surrendered for
conversion. Except as provided in the preceding sentence and subject to the last
paragraph of Section 3.7, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Notes surrendered for
conversion or on account of any dividends on the Common Shares issued upon
conversion.
Notes shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Notes for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Notes as Holders shall cease, and the person or persons entitled
to receive the Common Shares issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Shares at such time. As
promptly as practicable on or after the conversion date, the Company shall issue
and shall deliver at such office or agency a certificate or certificates for the
number of full Common Shares issuable upon conversion, together with payment in
lieu of any fraction of a share, as provided in Section 12.3.
In the case of any Note 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 Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Note.
SECTION 12.3. FRACTIONS OF SHARES. No fractional Common Shares shall be issued
upon the conversion of Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of Notes (or specified portions thereof) so
surrendered. Instead of any fractional Common Share which would otherwise be
issuable upon conversion of any Note or Notes (or specified portions
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thereof), the Company shall pay a cash adjustment in respect of such fraction in
an amount equal to the same fraction of the closing price per Common Share on
the Business Day prior to the day of conversion (determined as provided in
clause (i) of paragraph (g) of Section 12.4).
SECTION 12.4. ADJUSTMENT OF CONVERSION PRICE. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) If the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Shares payable in
Common Shares, the Conversion Price in effect at the opening of
business on the date following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of Common Shares outstanding at
the close of business on the Record Date (as defined in Section
12.4(g)) fixed for such determination and the denominator shall be the
sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day
following the Record Date. If any dividend or distribution of the type
described in this Section 12.4(a) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
(b) If the Company shall issue rights or warrants to all
holders of its outstanding Common Shares entitling them to subscribe
for or purchase Common Shares at a price per share less than the
Current Market Price (as defined in Section 12.4(g)) on the Record Date
fixed for the determination of shareholders entitled to receive such
rights or warrants, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion
Price in effect at the opening of business on the date after such
Record Date by a fraction of which the numerator shall be the number of
Common Shares outstanding at the close of business on the Record Date
plus the number of Common Shares which the aggregate offering price of
the total number of Common Shares so offered would purchase at such
Current Market Price and of which the denominator shall be the number
of Common Shares outstanding at the close of business on the Record
Date plus the total number of additional Common Shares so offered for
subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following the
Record Date fixed for determination of shareholders entitled to receive
such rights or warrants. To the extent that Common Shares are not
delivered pursuant to such rights or warrants, upon the expiration or
termination of such rights or warrants, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of
Common Shares actually delivered. If such rights or warrants are not so
issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for
the determination of shareholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase Common Shares
at less than such
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Current Market Price, and in determining the aggregate offering price
of such Common Shares, there shall be taken into account any
consideration received for such rights or warrants, with the value of
such consideration, if other than cash, to be determined by the Board
of Directors.
(c) If the outstanding Common Shares shall be subdivided into
a greater number of Common Shares, the Conversion Price in effect at
the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and,
conversely, if the outstanding Common Shares shall be combined into a
smaller number of Common Shares, the Conversion Price in effect at the
opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
(d) If the Company shall, by dividend or otherwise, distribute
to all holders of its Common Shares, capital shares of the Company of
any class (other than any dividends or distributions to which Section
12.4(a) applies) or evidences of its indebtedness, cash or other assets
(including securities, but excluding any rights or warrants of a type
referred to in Section 12.4(b) and dividends and distributions paid
exclusively in cash and excluding any capital shares, evidences of
indebtedness, cash or assets distributed upon a merger or consolidation
to which Section 12.10 applies) (the foregoing hereinafter in this
Section 12.4(d) called the "SECURITIES"), then, in each such case, the
Conversion Price shall be reduced so that the same shall be equal to
the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the Record Date (as
defined in Section 12.4(g)) with respect to such distribution by a
fraction of which the numerator shall be the Current Market Price
(determined as provided in Section 12.4(g)) on such date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) on such date of the portion of the Securities so
distributed applicable to one Common Share and the denominator shall be
such Current Market Price, such reduction to become effective
immediately prior to the opening of business on the day following the
Record Date; provided, however, that, in the event the then fair market
value (as so determined) of the portion of the Securities so
distributed applicable to one Common Share is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of
Notes shall have the right to receive upon conversion of a Note (or any
portion thereof) the amount of Securities such holder would have
received had such holder converted such Note (or portion thereof)
immediately prior to such Record Date. If such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to
be the Conversion Price which would then be in effect if such dividend
or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of
this Section 12.4(d) by reference to the actual or when issued trading
market for any securities comprising all or part of such distribution,
it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price pursuant to Section
12.4(g) to the extent possible.
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Rights or warrants distributed by the Company to all holders
of Common Shares entitling the holders thereof to subscribe for or
purchase the Company's capital shares (either initially or under
certain circumstances), which rights or warrants, until the occurrence
of a specified event or events ("TRIGGER EVENT"): (i) are deemed to be
transferred with such Common Shares; (ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common Shares,
shall be deemed not to have been distributed for purposes of this
Section 12.4(d) (and no adjustment to the Conversion Price under this
Section 12.4(d) shall be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment to the Conversion
Price under this Section 12.4(d) shall be made. If any such rights or
warrants, including any such existing rights or warrants distributed
prior to the date of this Indenture, are subject to subsequent events,
upon the occurrence of each of which such rights or warrants shall
become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event
shall be deemed to be such date of issuance and record date with
respect to new rights or warrants (and a termination or expiration of
the existing rights or warrants without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event with respect
thereto, that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Price under this
Section 12.4 was made, (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Price shall be readjusted upon such
final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price
received by a holder or holders of Common Shares with respect to such
rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Shares as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise
by any holders thereof, the Conversion Price shall be readjusted as if
such rights and warrants had not been issued.
Notwithstanding any other provision of this Section 12.4(d) to
the contrary, rights, warrants, evidences of indebtedness, other
securities, cash or other assets (including, without limitation, any
rights distributed pursuant to any shareholder rights plan) shall be
deemed not to have been distributed for purposes of this Section
12.4(d) if the Company makes proper provision so that each holder of
Notes who converts a Note (or any portion thereof) after the date fixed
for determination of shareholders entitled to receive such distribution
shall be entitled to receive upon such conversion, in addition to the
Common Shares issuable upon such conversion, the amount and kind of
such distributions that such holder would have been entitled to receive
if such holder had, immediately prior to such determination date,
converted such Note into Common Shares.
For purposes of this Section 12.4(d) and Sections 12.4(a) and
(b), any dividend or distribution to which this Section 12.4(d) is
applicable that also includes Common Shares, or rights or warrants to
subscribe for or purchase Common Shares to which Section 12.4(b)
applies (or both), shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, assets, capital shares,
rights or warrants
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other than such Common Shares or rights or warrants to which Section
12.4(b) applies (and any Conversion Price reduction required by this
Section 12.4(d) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of
such Common Shares or such rights or warrants (and any further
Conversion Price reduction required by Sections 12.4(a) and (b) with
respect to such dividend or distribution shall then be made), except
that (i) the Record Date of such dividend or distribution shall be
substituted as "the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution", "Record Date
fixed for such determination" and "Record Date" within the meaning of
Section 12.4(a) and as "the date fixed for the determination of
shareholders entitled to receive such rights or warrants", "the Record
Date fixed for the determination of the shareholders entitled to
receive such rights or warrants" and "such Record Date" within the
meaning of Section 12.4(b), and (ii) any Common Shares included in such
dividend or distribution shall not be deemed "outstanding at the close
of business on the date fixed for such determination" within the
meaning of Section 12.4(a).
(e) If the Company shall, by dividend or otherwise, distribute
to all holders of its Common Shares cash (excluding any cash that is
distributed upon a merger or consolidation to which Section 12.10
applies or as part of a distribution referred to in Section 12.4(d)) in
an aggregate amount that, combined together with (1) the aggregate
amount of any other such distributions to all holders of its Common
Shares made exclusively in cash within the 12 months preceding the date
of payment of such distribution, and in respect of which no adjustment
pursuant to this Section 12.4(e) has been made, and (2) the aggregate
of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) of consideration payable in
respect of any tender offer by the Company or any of its subsidiaries
for all or any portion of the Common Shares concluded within the 12
months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to Section 12.4(f) has been
made, exceeds 10% of the product of the Current Market Price
(determined as provided in Section 12.4(g)) on the Record Date with
respect to such distribution times the number of Common Shares
outstanding on such date, then, and in each such case, immediately
after the close of business on such date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
close of business on such Record Date by a fraction (i) the numerator
of which shall be equal to the Current Market Price on the Record Date
less an amount equal to the quotient of (x) the excess of such combined
amount over such 10% and (y) the number of Common Shares outstanding on
the Record Date and (ii) the denominator of which shall be equal to the
Current Market Price on such Record Date; provided, however, that, if
the portion of the cash so distributed applicable to one Common Share
is equal to or greater than the Current Market Price of the Common
Shares on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of Notes shall
have the right to receive upon conversion of a Note (or any portion
thereof) the amount of cash such holder would have received had such
holder converted such Note (or portion thereof) immediately prior to
such Record Date. If such dividend or distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such
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dividend or distribution had not been declared. Any cash distribution
to all holders of Common Shares as to which the Company makes the
election permitted by Section 12.4(m) and as to which the Company has
complied with the requirements of such Section shall be treated as not
having been made for all purposes of this Section 12.4(e).
(f) If a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Shares expires and
such tender offer (as amended upon the expiration thereof) requires the
payment to shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of
Directors) that, combined together with (1) the aggregate of the cash
plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution
of the Board of Directors), as of the expiration of such tender offer,
of consideration payable in respect of any other tender offers, by the
Company or any of its subsidiaries for all or any portion of the Common
Shares expiring within the 12 months preceding the expiration of such
tender offer and in respect of which no adjustment pursuant to this
Section 12.4(f) has been made and (2) the aggregate amount of any
distributions to all holders of the Common Shares made exclusively in
cash within 12 months preceding the expiration of such tender offer and
in respect of which no adjustment pursuant to Section 12.4(e) has been
made, exceeds 10% of the product of the Current Market Price
(determined as provided in Section 12.4(g)) as of the last time (the
"EXPIRATION TIME") tenders could have been made pursuant to such tender
offer (as it may be amended) times the number of Common Shares
outstanding (including any tendered shares) at the Expiration Time,
then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date of the
Expiration Time by a fraction of which the numerator shall be the
number of Common Shares outstanding (including any tendered shares) at
the Expiration Time multiplied by the Current Market Price of the
Common Shares on the trading day next succeeding the Expiration Time
and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any maximum specified in
the terms of the tender offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "PURCHASED SHARES") and
(y) the product of the number of Common Shares outstanding (less any
Purchased Shares) at the Expiration Time and the Current Market Price
of the Common Shares on the trading day next succeeding the Expiration
Time, such reduction (if any) to become effective immediately prior to
the opening of business on the day following the Expiration Time. If
the Company is obligated to purchase shares pursuant to any such tender
offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such tender offer had not been made.
If the application of this Section 12.4(f) to any tender offer would
result in an increase in
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the Conversion Price, no adjustment shall be made for such tender offer
under this Section 12.4(f).
(g) For purposes of this Section 12.4, the following terms
shall have the meanings indicated:
(i) "CLOSING PRICE" with respect to any securities on
any day means the closing price on such day or, if no such
sale takes place on such day, the average of the reported high
and low bid quotations on such day, in each case on the Nasdaq
National Market or the New York Stock Exchange, as applicable,
or, if such security is not listed or admitted to trading on
the Nasdaq National Market or such exchange, on the principal
national securities exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of the
high and low prices of such security on the over-the-counter
market on the day in question as reported by the National
Quotation Bureau Incorporated or a similar generally accepted
reporting service, or, if not so available, in such manner as
furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors for that purpose,
or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a
resolution of the Board of Directors.
(ii) "CURRENT MARKET PRICE" means the average of the
daily closing prices per Common Share for the ten consecutive
trading days immediately prior to the date in question;
provided, however, that (A) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or
distribution requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section
12.4(a), (b), (c), (d), (e) or (f) occurs during such ten
consecutive trading days, the closing price for each trading
day prior to the "ex" date for such other event shall be
adjusted by multiplying such closing price by the same
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, (B) if the "ex" date
for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(a), (b), (c), (d),
(e) or (f) occurs on or after the "ex" date for the issuance
or distribution requiring such computation and prior to the
day in question, the closing price for each trading day on and
after the "ex" date for such other event shall be adjusted by
multiplying such closing price by the reciprocal of the
fraction by which the Conversion Price is so required to be
adjusted as a result of such other event and (C) if the "ex"
date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into
account any adjustment required pursuant to clause (A) or (B)
of this proviso, the closing price for each trading day on or
after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value (as determined by
the Board of Directors in a manner consistent with any
determination of such value for purposes of Section 12.4(d) or
(f), whose determination shall be conclusive and described in
a resolution of the Board of
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Directors) of the evidences of indebtedness, capital shares or
assets being distributed applicable to one Common Share as of
the close of business on the day before such "ex" date. For
purposes of any computation under Section 12.4(f), the Current
Market Price on any date shall be deemed to be the average of
the daily closing prices per Common Share for such day and the
next two succeeding trading days; provided, however, that, if
the "ex" date for any event (other than the tender offer
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(a), (b), (c), (d),
(e) or (f) occurs on or after the Expiration Time for the
tender or exchange offer requiring such computation and prior
to the day in question, the closing price for each trading day
on and after the "ex" date for such other event shall be
adjusted by multiplying such closing price by the reciprocal
of the fraction by which the Conversion Price is so required
to be adjusted as a result of such other event. For purposes
of this paragraph, the term "ex" date (I) when used with
respect to any issuance or distribution, means the first date
on which the Common Shares trade regular way on the relevant
exchange or in the relevant market from which the closing
price was obtained without the right to receive such issuance
of distribution, (II) when used with respect to any
subdivision or combination of Common Shares, means the first
date on which the Common Shares trade regular way on such
exchange or in such market after the time at which such
subdivision or combination becomes effective and (III) when
used with respect to any tender or exchange offer means the
first date on which the Common Shares trade regular way on
such exchange or in such market after the Expiration Time of
such offer. Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Price are called for pursuant to
this Section 12.4, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.4 and to avoid unjust
or inequitable results, as determined in good faith by the
Board of Directors.
(iii) "FAIR MARKET VALUE" shall mean the amount which
a willing buyer would pay a willing seller in an arm's-length
transaction.
(iv) "RECORD DATE" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Shares have the right to receive any
cash, securities or other property or in which the Common
Shares (or other applicable security) are exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of shareholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(v) "TRADING DAY" shall mean (A) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other national
securities exchange is open for business, (B) if the
applicable security is quoted on the Nasdaq National Market, a
day on which trades may be made thereon or (C) if the
applicable security is not so listed, admitted for trading
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or quoted, any day other than a Saturday or Sunday or a day on
which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 12.4(a), (b), (c),
(d), (e) and (f), as the Board of Directors considers to be advisable
to avoid or diminish any income tax to holders of Common Shares or
rights to purchase Common Shares resulting from any dividend or
distribution of shares (or rights to acquire shares) or from any event
treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least 20 days, the reduction is
irrevocable during the period and the Board of Directors has made a
determination that such reduction would be in the Company's best
interests, which determination shall be conclusive and described in a
resolution of the Board of Directors. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Company shall mail to
the holders of Notes at their last addresses appearing on the register
of holders maintained for that purpose a notice of the reduction at
least 15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price and
the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this Section 12.4(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 12 shall be made by the Company and
shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
No adjustment need be made for a change in the par value or no
par value of the Common Shares.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee an Officers'
Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Price
setting forth the adjusted Conversion Price and the date on which each
adjustment becomes effective and shall mail, or shall cause the Trustee
to mail, such notice of such adjustment of the Conversion Price to each
Holder of Notes at such Holder's last address appearing on the register
of Holders maintained for that purpose within 20 days of the effective
date of such adjustment. Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.
(k) In any case in which this Section 12.4 provides that an
adjustment shall become effective immediately after a Record Date for
an event, the Company may defer until the occurrence of such event
issuing to the Holder of any Note converted after such Record Date and
before the occurrence of such event the additional Common Shares
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issuable upon such conversion by reason of the adjustment required by
such event over and above the Common Shares issuable upon such
conversion before giving effect to such adjustment.
(l) For purposes of this Section 12.4, the number of Common
Shares at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of Common Shares. The
Company shall not pay any dividend or make any distribution on Common
Shares held in the treasury of the Company.
(m) In lieu of making any adjustment to the Conversion Price
pursuant to Section 12.4(e), the Company may elect to reserve an amount
of cash for distribution to the Holders of Notes upon the conversion of
the Notes so that any such Holder converting Notes will receive upon
such conversion, in addition to the Common Shares and other items to
which such Holder is entitled, the full amount of cash which such
Holder would have received if such Holder had, immediately prior to the
Record Date for such distribution of cash, converted its Notes into
Common Shares, together with any interest accrued with respect to such
amount, in accordance with this Section 12.4(m). The Company may make
such election by providing an Officers' Certificate to the Trustee to
such effect on or prior to the payment date for any such distribution
and depositing with the Trustee on or prior to such date an amount of
cash equal to the aggregate amount that the Holders of Notes would have
received if such Holders had, immediately prior to the Record Date for
such distribution, converted all the Notes into Common Shares. Any such
funds so deposited by the Company with the Trustee shall be invested by
the Trustee in U.S. Government Obligations with a maturity not more
than three months from the date of issuance. Upon conversion of Notes
by a Holder thereof, such Holder shall be entitled to receive, in
addition to the Common Shares issuable upon conversion, an amount of
cash equal to the amount such Holder would have received if such Holder
had, immediately prior to the Record Date for such distribution,
converted its Notes into Common Shares, along with such Holder's pro
rata share of any accrued interest earned as a consequence of the
investment of such funds. Promptly after making an election pursuant to
this Section 12.4(m), the Company shall give or shall cause to be given
notice to all Holders of Notes of such election, which notice shall
state the amount of cash per $1,000 principal amount of Notes such
Holders shall be entitled to receive (excluding interest) upon
conversion of the Notes as a consequence of the Company having made
such election.
SECTION 12.5. NOTICE OF ADJUSTMENT OF CONVERSION PRICE. Whenever the
conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 12.4 and shall prepare a certificate signed by
the President, any Vice President or the Treasurer of the Company
setting forth the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based and the effective
date of such adjustment, and such certificate shall forthwith be filed
at each office or agency maintained for the purpose of conversion of
Notes; and
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(b) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall, as soon
as practicable, be mailed by the Company, or by the Trustee if the
Company so requests, to all Holders at their last addresses as they
shall appear in the Note Register.
SECTION 12.6. NOTICE OF CERTAIN CORPORATE ACTION. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than in cash out
of its earned surplus; or
(b) the Company shall authorize the granting to the holders of
its Common Shares of rights or warrants to subscribe for or purchase
any capital shares of any class or of any other rights; or
(c) of any reclassification of the Common Shares of the
Company (other than a subdivision or combination of its outstanding
Common Shares), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is
required, or the sale or transfer of all or substantially all the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Notes, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the Note
Register, at least 20 days (or ten days in any case specified in clause (a) or
(b) above) prior to the applicable 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 or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Shares of record to be entitled to such
dividend, distribution, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Shares of record shall be
entitled to exchange their Common Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up. Failure to give the notice required by
this Section or any defect therein shall not affect the legality or validity of
any dividend, distribution, right, warrant, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up, or the vote upon
any such action.
SECTION 12.7. COMPANY TO RESERVE COMMON SHARES. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Shares, for the purpose of effecting the
conversion of Notes, the full number of Common Shares then issuable upon the
conversion of all outstanding Notes.
SECTION 12.8. TAXES ON CONVERSION. The Company will pay any and all
taxes that may be payable in respect of the issue or delivery of Common Shares
on conversion of Notes pursuant hereto. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of Common Shares in a
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name other than that of the Holder of the Note or Notes to be converted, and no
such issue or delivery shall be made unless and until the Person requesting such
issue or delivery has paid the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 12.9. COVENANT AS TO COMMON SHARES. The Company covenants that
all Common Shares which may be issued upon conversion of Notes will upon issue
be duly and validly issued and fully paid and nonassessable and, except as
provided in Section 12.8, the Company will pay all taxes, liens and charges with
respect to the issue thereof.
SECTION 12.10. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR
CONVEYANCE OR TRANSFER OF PROPERTIES AND ASSETS. In case of any consolidation of
the Company with, or merger of the Company into, any other corporation, or in
case of any merger of another corporation into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding Common Shares of the Company), or in case of any
conveyance or transfer of the properties and assets of the Company substantially
as an entirety, the corporation formed by such consolidation or resulting from
such merger or which acquires by conveyance or transfer such properties and
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Note then outstanding
shall have the right thereafter, during the period such Note shall be
convertible as specified in Section 12.1, to convert such Note only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance or transfer by a holder of the number of
Common Shares of the Company into which such Note might have been converted
immediately prior to such consolidation, merger, conveyance or transfer,
assuming such holder of Common Shares of the Company failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, conveyance or
transfer (provided that, if the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance or transfer is
not the same for each Common Share of the Company in respect of which such
rights of election shall not have been exercised ("NONELECTING SHARE"), then for
the purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance or transfer by
each nonelecting share shall be deemed to be the kind and amount so receivable
per share by a plurality of the nonelecting shares). 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 shall similarly apply to successive consolidations,
mergers, conveyance or transfers.
SECTION 12.11. RESPONSIBILITY OF TRUSTEE. The Trustee, subject to the
provisions of Section 6.1, and any conversion agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the 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. Neither the Trustee nor any conversion agent shall
be accountable with respect to the validity or value (or the kind or amount) of
any Common Shares, or of any other securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and it or they do not
make any representation with respect thereto.
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Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver
any Common Shares or share certificates or other securities or property upon the
surrender of any Note for the purpose of conversion; and the Trustee, subject to
the provisions of Section 6.1, and any conversion agent shall not be responsible
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
ARTICLE XIII
SUBORDINATION OF NOTES
SECTION 13.1. NOTES SUBORDINATE TO SENIOR INDEBTEDNESS. The Company,
for itself, its successors and assigns, covenants and agrees, and each Holder of
Notes, by his acceptance thereof likewise covenants and agrees, that all Notes
issued hereunder shall be subordinated and subject, to the extent and in the
manner herein set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. The Notes shall rank pari passu with the 6.5% Convertible
Subordinated Notes due 2003.
SECTION 13.2. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT; PAYMENT
OVER OF PROCEEDS UPON DISSOLUTION, ETC. In the event the Company shall default
in the payment of any Senior Indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of or interest on the Notes, or in respect of any
redemption, retirement, purchase or other acquisition (except through the
conversion thereof) of any of the Notes.
Upon the happening of an event of default with respect to any Senior
Indebtedness, as defined therein or in the instrument under which the same is
outstanding, permitting the holders thereof to accelerate the maturity thereof
(under circumstances when the terms of the preceding paragraph are not
applicable), unless and until such event of default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of or interest on the Notes, or in respect of
any redemption, retirement, purchase or other acquisition (except through the
conversion thereof) of any of the Notes.
In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company or its property;
(b) any proceeding for the liquidation, dissolution or other
winding-up of the Company or its property;
(c) any assignment by the Company for the benefit of
creditors; or
(d) any other marshalling of the assets of the Company;
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all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceeding) shall first be paid in full before any
payment or distribution (direct or indirect), whether in cash, property or
securities, by set-off or otherwise, shall be made to any Holder on account of
any Notes (except through the conversion thereof), and to that end any payment
or distribution, whether in cash, property or securities (other than securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinate, at least to the extent
provided in this Article with respect to the Notes, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) which would
otherwise (but for the subordination provisions contained in this Article) be
payable or deliverable in respect of the Notes shall be paid or delivered
directly to the holders of Senior Indebtedness, as their respective interests
may appear, until all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) shall have been paid in
full.
If the Notes are declared due and payable before their Stated Maturity
because of the occurrence of an Event of Default (under circumstances where the
preceding paragraph is not applicable), no payment (direct or indirect) shall be
made in respect of any Note unless and until all Senior Indebtedness has been
paid in full or such declaration and its consequences shall have been rescinded
and all such defaults shall have been remedied or waived.
If any payment or distribution (other than securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinate, at least to the extent provided in this
Article with respect to the Notes, to the payment of all Senior Indebtedness at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment) shall be received by the Trustee or
the Holders in contravention of any of the terms of this Article and before all
the Senior Indebtedness has been paid in full, then, subject to Section 13.4,
such payment or distribution shall be held in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of such Senior
Indebtedness at the time outstanding as their respective interests may appear
for application to the payment of Senior Indebtedness until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceeding referred to in paragraphs (a), (b), (c) or (d) above) shall
have been paid in full. If the Trustee or any such Holder fails to endorse or
assign any such payment or distribution as required by this Section, the Trustee
and the Holder of each Note by his acceptance thereof authorizes each holder of
Senior Indebtedness, any representative or representatives of holders of Senior
Indebtedness and the trustee or trustees under any indenture pursuant to which
any instrument evidencing such Senior Indebtedness may have been issued so to
endorse or assign the same.
No holder of Senior Indebtedness shall be prejudiced in the right to
enforce subordination of the Notes by any act or failure to act on the part of
the Company.
Subject to the payment in full of all Senior Indebtedness, the Holders
shall be subrogated (equally and ratably with the holders of all indebtedness of
the Company which ranks on a parity with the Notes and is entitled to like
rights of subrogation, including without limitation the 6.5% Convertible
Subordinated Notes due 2003) to the rights of the holders of Senior Indebtedness
to receive payments or distributions applicable to the Senior Indebtedness until
the Notes shall be paid in full, and no such payments or distributions shall, as
between the Company, its creditors other than the holders of Senior Indebtedness
and the Holders of the Notes, be deemed to be a
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payment by the Company to or on account of the Notes. The provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Holders of the Notes, on the one hand, and the holders of Senior
Indebtedness, on the other hand, and nothing contained in this Article or
elsewhere in this Indenture or in the Notes is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior Indebtedness
and the Holders of the Notes, the obligation of the Company to pay the Holders
the principal of and interest on the Notes as and when the same shall become due
and payable in accordance with the terms thereof, or prevent the Trustee or the
Holders from exercising all rights, powers and remedies otherwise permitted by
applicable law or under this Indenture, upon a default or Event of Default
hereunder, all subject to the rights of the holders of Senior Indebtedness to
receive cash, property or securities otherwise payable or deliverable to the
Trustee or the Holders.
Upon any payment or distribution pursuant to this Section, the Trustee
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in this Section
are pending, and the Trustee, subject as between the Trustee and the Holders to
the provisions of Section 6.1, shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making such payment or
distribution to the Trustee or to the Holders for the purpose of ascertaining
the Person 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 Section. In the event that the
Trustee determines, in good faith, that 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 Section, 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, as to the extent to which
such Person is entitled to participate in such payment or distribution, and as
to other facts pertinent to the rights of such Person under this Section, 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 13.3. TRUSTEE TO EFFECTUATE SUBORDINATION. The Holder of each
Note by his acceptance thereof authorizes and directs the Trustee in his behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 13.4. TRUSTEE NOT CHARGED WITH KNOWLEDGE OF PROHIBITION.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, but subject as between the Trustee and the Holders to the provisions
of Section 6.1, the Trustee shall not be charged with knowledge of the existence
of any Senior Indebtedness, or of any default in the payment of any Senior
Indebtedness, or of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, unless and until three Business Days after the
Trustee shall have received written notice thereof from the Company or any
holder of Senior Indebtedness or the representative or representatives of such
holder, and the Trustee may conclusively rely on any writing purporting to be
from a holder of Senior Indebtedness, or a representative of such holder, as
being genuine; nor shall the Trustee be charged with knowledge of the curing of
any such default or of the elimination of the act or condition presenting any
such payment unless and until the Trustee shall have received an Officers'
Certificate to such effect. The provisions of this
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Section shall not limit any rights of holders of Senior Indebtedness under this
Article XIII to recover from the Holders of Notes any payment made to any such
Holder.
SECTION 13.5. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS. The
Trustee 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 Section
6.12, or elsewhere in this Indenture, shall deprive the Trustee of any of its
rights as such holder.
SECTION 13.6. ARTICLE APPLICABLE TO PAYING AGENT. 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 shall otherwise require) 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, however, that Sections 13.4
and 13.5 shall not apply to the Company or any Affiliate if the Company or such
Affiliate acts as Paying Agent.
ARTICLE XIV
RIGHT TO REQUIRE REPURCHASE
SECTION 14.1. RIGHT TO REQUIRE REPURCHASE. In the event that there
shall occur a Change in Control (as defined in Section 14.5), each Holder shall
have the right, at such Holder's option, to require the Company to purchase, and
upon the exercise of such right, the Company shall, subject to the provisions of
Article XIII, purchase, all or any part of such Holder's Notes on the date (the
"REPURCHASE DATE") that is 75 days after the date the Company gives notice of
the Change in Control as contemplated in Section 14.2(a) at a price (the
"REPURCHASE PRICE") equal to 100% of the principal amount thereof, together with
accrued and unpaid interest to the Repurchase Date. In connection with the
exercise of the repurchase right by a Holder prior to a Redemption Date, a
Holder's right to exercise his repurchase right shall terminate at the close of
business on the Business Day prior to the Redemption Date.
SECTION 14.2. NOTICE; METHOD OF EXERCISING REPURCHASE RIGHT. (a) On or
before the 15th day after the occurrence of a Change in Control, the Company or,
at the request of the Company, the Trustee (in the name and at the expense of
the Company), shall give notice of the occurrence of the Change in Control and
of the repurchase right set forth herein arising as a result thereof by
first-class mail, postage prepaid, to each Holder of the Notes at such Holder's
address appearing in the Note Register. The Company shall also deliver a copy of
such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(i) the event constituting the Change in Control and the date
thereof;
(ii) the Repurchase Date;
(iii) the date by which the repurchase right must be
exercised;
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(iv) the Repurchase Price; and
(v) the procedures a Holder must follow to exercise a
repurchase right.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative obligation to determine if there shall have occurred a Change in
Control.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the tenth 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
Note or Notes (or portion of a Note) to be repurchased and a statement that an
election to exercise the repurchase right is being made thereby and (ii) the
Note or Notes with respect to which the repurchase right is being exercised,
duly endorsed for transfer to the Company. Such written notice shall be
irrevocable. If the Repurchase Date falls between any Regular Record Date and
the next succeeding Interest Payment Date, Notes to be repurchased must be
accompanied by payment from the Holder of an amount equal to the interest
thereon which the registered Holder thereof is to receive on such Interest
Payment Date. A Holder that fails to exercise a repurchase right in accordance
with the terms hereof shall waive such repurchase right but the rights of such
Holder to receive principal of and interest on the Notes and all other rights of
such Holder under this Indenture shall not be affected thereby.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on the Repurchase Date pay or cause to
be paid in cash to the Holder thereof the Repurchase Price of the Note or Notes
as to which the repurchase right has been exercised. In the event that a
repurchase right is exercised with respect to less than the entire principal
amount of a surrendered Note, the Company shall execute and deliver to the
Trustee and the Trustee shall authenticate for issuance in the name of the
Holder a new Note or Notes in the aggregate principal amount of the
unrepurchased portion of such surrendered Note.
SECTION 14.3. DEPOSIT OF REPURCHASE PRICE. On or prior to the
Repurchase 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 10.3) an amount of money sufficient to pay the
Repurchase Price of the Notes which are to be repaid on the Repurchase Date.
SECTION 14.4. NOTES NOT REPURCHASED ON REPURCHASE DATE. If any Note
surrendered for repurchase shall not be so paid on the Repurchase Date, the
principal shall, until paid, bear interest to the extent permitted by applicable
law from the Repurchase Date at the rate per annum borne by such Note.
SECTION 14.5. "CHANGE IN CONTROL" DEFINED. For purposes of this
Article, "CHANGE IN CONTROL" means any of the following events that occur after
the date of this Indenture and on or prior to Maturity:
(a) all or substantially all of the Company's assets are sold
as an entirety to any person or related group of persons;
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(b) there shall be consummated any consolidation or merger of
the Company (i) in which the Company is not the continuing or surviving
corporation (other than a consolidation or merger with a wholly-owned
subsidiary of the Company in which all Common Shares outstanding
immediately prior to the effectiveness thereof are changed into or
exchanged for the same consideration) or (ii) pursuant to which the
Common Shares are converted into cash, securities or other property, in
each case other than a consolidation or merger of the Company in which
the holders of the Common Shares immediately prior to the consolidation
or merger have, directly or indirectly, at least a majority of the
common shares of the continuing or surviving corporation immediately
after such consolidation or merger; or
(c) any person, or any persons acting together which would
constitute a "group" for purposes of Section 13(d) of the Securities
Exchange Act of 1934 (a "GROUP"), together with any Affiliates thereof,
shall acquire beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of at least 50% of the total voting
power of all classes of capital shares of the Company entitled to vote
generally in the election of directors of the Company.
Notwithstanding anything to the contrary set forth in this definition,
a Change in Control shall not be deemed to have occurred:
(A) under paragraph (c) above, solely by virtue of the
Company, any Subsidiary, any employee share purchase plan, share option
plan or other share incentive plan or program, retirement plan or
automatic dividend reinvestment plan or any substantially similar plan
of the Company or any Subsidiary or any Person holding securities of
the Company for or pursuant to the terms of any such employee benefit
plan, filing or becoming obligated to file a report under or in
response to Schedule 13D or Schedule 14D-1 (or any successor schedule,
form or report) under the Securities Exchange Act of 1934 disclosing
beneficial ownership by it of shares or securities of the Company,
whether at least 50% of the total voting power referred to in paragraph
(c) above, or otherwise; or
(B) under paragraphs (a), (b) or (c) above if:
(1) the Current Market Price of the Common Shares on
the date the Change in Control shall have occurred is at least
equal to 105% of the Conversion Price in effect immediately
preceding the time of such Change in Control; or
(2) all of the consideration (excluding cash payments
for fractional shares) in the transaction giving rise to such
Change in Control to the holders of Common Shares consists of
common shares that are, or immediately upon issuance will be,
listed on a national securities exchange or quoted on the
Nasdaq National Market, and as a result of such transaction
the Notes become convertible solely into such common shares;
or
(3) the consideration in the transaction giving rise
to such Change in Control to the holders of Common Shares
consists of cash, securities that are, or immediately upon
issuance will be, listed on a national securities exchange or
-61-
quoted on the Nasdaq National Market, or a combination of cash
and such securities, and the aggregate fair market value of
such consideration (which, in the case of such securities,
shall be equal to the average of the daily Closing Prices of
such securities during the ten consecutive Trading Days
commencing with the sixth Trading Day following consummation
of such transaction) is at least 105% of the Conversion Price
in effect on the date immediately preceding the closing date
of such transaction.
If a Change in Control shall have occurred under paragraph (b) above,
the Company shall deliver the Officers' Certificate and Opinion of Counsel
called for under Section 8.1(c) as well as the notices called for under Section
14.2(a).
For purposes of this definition of Change of Control, "CURRENT MARKET
PRICE" on any date means the average daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more than ten
Trading Days before, and ending not later than, the date in question; "CLOSING
PRICE" for any Trading Day means the last reported sale price (or, if none on
any day, the mean between the bid and asked quotations on such day) of the
securities in question for such date, in either case on the New York Stock
Exchange or, if the securities are not listed or admitted to trading on such
exchange, on the principal national securities exchange on which such securities
are listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on The Nasdaq National Market or, if the
securities are not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market, the average of the closing bid
and asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected by the Company for such purpose; and
"TRADING DAY", with respect to any stock exchange or securities market, means
any Monday, Tuesday, Wednesday, Thursday or Friday on which such stock exchange
or securities market is open for business.
* * *
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
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XXXXXXX & XXXXX, INC.
By:
-------------------------- -------------------------------
Print Name:
Name: --------------------------
--------------------- Title:
-------------------------
--------------------------
Print
Name:
---------------------
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
-------------------------- -------------------------------
Print Name:
Name: --------------------------
--------------------- Title:
-------------------------
--------------------------
Print
Name:
---------------------
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XXXXXXX & XXXXX, INC.
Reconciliation and Tie Between the Trust Indenture Act
of 1939 and Indenture dated as of February _____, 2003
Trust
Indenture
Act Section Indenture
----------- ---------
(ss.) 310(a)(1)........................................................................ 6.8
(a)(2)........................................................................... 6.8
(a)(3)........................................................................... Not Applicable
(a)(4)........................................................................... Not Applicable
(a)(5)........................................................................... 6.8
(b).............................................................................. 6.8
6.9
(ss.) 311(a)........................................................................... 6.12
(b).............................................................................. 6.12
(b)(2)........................................................................... 6.12
(ss.) 312(a)........................................................................... 7.1
7.2(a)
(b).............................................................................. 7.2(b)
(c).............................................................................. 7.2(c)
(ss.) 313(a)........................................................................... 7.3(a)
(b).............................................................................. 7.3(a)
(c).............................................................................. 7.3(a)
(d).............................................................................. 7.3(b)
(ss.) 314(a)........................................................................... 7.4(a)
7.4(b)
(b).............................................................................. Not Applicable
(c)(1)........................................................................... 1.2
(c)(2)........................................................................... 1.2
(c)(3)........................................................................... Not Applicable
(d).............................................................................. Not Applicable
(e).............................................................................. 1.2
(ss.) 315(a)........................................................................... 6.1(a)
(b).............................................................................. 6.2
(c).............................................................................. 6.1(b)
(d).............................................................................. 6.1(c)
(d)(1)........................................................................... 6.1(a)(i)
6.1(a)(ii)
(d)(2)........................................................................... 6.1(c)(ii)
(d)(3)........................................................................... 6.1(c)(iii)
(e).............................................................................. 5.14
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Trust
Indenture
Act Section Indenture
----------- ---------
(ss.) 316(a)(1)(A)..................................................................... 5.2
5.12
(a)(1)(B)........................................................................ 5.13
(a)(2)........................................................................... Not Applicable
(b).............................................................................. 5.8
(ss.) 317(a)(1)........................................................................ 5.3
(a)(2)........................................................................... 5.4
(b).............................................................................. 10.3
(ss.) 318(a)........................................................................... 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-65-
