EXHIBIT 4.1
DRAFT: JANUARY 23, 1996
$25,000,000
____% Convertible Subordinated Debentures due February ___, 2006
____________________________________
MERCURY AIR GROUP, INC.
INDENTURE
Dated as of January ___, 1996
IBJ Xxxxxxxx Bank & Trust Company, as Trustee
____________________________________________
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
------- -------
310 (a)(1).........................................................7.10
(a)(2).........................................................7.10
(a)(3).........................................................N.A.
(a)(4).........................................................N.A.
(a)(5).........................................................7.10
(b)............................................................7.8; 7.10
(c)............................................................N.A.
311 (a)............................................................7.11
(b)............................................................7.11
(c)............................................................N.A.
312 (a)............................................................2.5
(b)............................................................14.3
(c)............................................................14.3
313 (a)............................................................7.6
(b)(1).........................................................7.6
(b)(2).........................................................7.6
(c)............................................................7.6; 14.2
(d)............................................................7.6
314 (a)............................................................4.7; 14.2
(b)............................................................N.A.
(c)(1).........................................................2.2; 7.2; 14.4
(c)(2).........................................................7.2; 14.4
(c)(3).........................................................N.A.
(d)............................................................N.A
(e)............................................................14.5
(f)............................................................N.A
315 (a)............................................................7.1(b)
(b)............................................................7.5; 14.2
(c)............................................................7.1(a)
(d)............................................................7.1(c)
(e)............................................................6.13
316 (a) (last sentence)............................................2.9
(a)(1)(A)......................................................6.11
(a)(1)(B)......................................................6.12
(a)(2).........................................................N.A.
(b)............................................................6.8, 6.12
(c)............................................................10.5
317 (a)(1).........................................................6.3
(a)(2).........................................................6.4
(b)............................................................2.4
318 (a)............................................................14.1
___________________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions............................................... 1
Section 1.2 Incorporation by Reference of TIA......................... 7
Section 1.3 Rules of Construction..................................... 7
ARTICLE II.
THE DEBENTURES
Section 2.1 Form and Dating........................................... 8
Section 2.2 Execution and Authentication.............................. 8
Section 2.3 Registrar, Paying Agent and Conversion Agent.............. 9
Section 2.4 Paying Agent to Hold Assets in Trust...................... 10
Section 2.5 Debentureholder Lists..................................... 10
Section 2.6 Transfer and Exchange..................................... 11
Section 2.7 Replacement Debentures.................................... 12
Section 2.8 Outstanding Debentures.................................... 13
Section 2.9 Treasury Debentures....................................... 13
Section 2.10 Temporary Debentures...................................... 13
Section 2.11 Cancellation.............................................. 14
Section 2.12 Defaulted Interest........................................ 14
Section 2.13 CUSIP Number.............................................. 15
Section 2.14 Debentures in Global Form................................. 15
ARTICLE III.
REDEMPTION
Section 3.1 Right of Redemption....................................... 16
Section 3.2 Notices to Trustee........................................ 16
Section 3.3 Selection of Debentures to be Redeemed.................... 16
Section 3.4 Notice of Redemption...................................... 17
Section 3.5 Effect of Notice of Redemption............................ 18
Section 3.6 Deposit of Redemption Price............................... 18
Section 3.7 Debentures Redeemed in Part............................... 18
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ARTICLE IV.
COVENANTS
Section 4.1 Payment of Debentures..................................... 19
Section 4.2 Maintenance of Office or Agency........................... 19
Section 4.3 Corporate Existence....................................... 20
Section 4.4 Payment of Taxes and Other Claims......................... 20
Section 4.5 Maintenance of Properties and Insurance................... 20
Section 4.6 Compliance Certificate; Notice of Default................. 20
Section 4.7 SEC Reports............................................... 21
Section 4.8 Limitations on Status as Investment Company............... 21
ARTICLE V.
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge, Etc............................... 22
Section 5.2 Successor Corporation Substituted......................... 23
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default......................................... 23
Section 6.2 Acceleration of Maturity Date; Rescission and Annulment... 25
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee................................................... 26
Section 6.4 Trustee May File Proofs of Claim.......................... 27
Section 6.5 Trustee May Enforce Claims Without Possession of
Debentures................................................ 27
Section 6.6 Priorities................................................ 28
Section 6.7 Limitation on Suits....................................... 28
Section 6.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................... 29
Section 6.9 Rights and Remedies Cumulative............................ 29
Section 6.10 Delay or Omission Not Waiver.............................. 29
Section 6.11 Control by Holders........................................ 29
Section 6.12 Waiver of Past Default.................................... 30
Section 6.13 Undertaking for Costs..................................... 30
Section 6.14 Restoration of Rights and Remedies........................ 31
ARTICLE VII.
TRUSTEE
Section 7.1 Duties of Trustee......................................... 31
Section 7.2 Rights of Trustee......................................... 32
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Section 7.3 Individual Rights of Trustee.............................. 33
Section 7.4 Trustee's Disclaimer...................................... 33
Section 7.5 Notice of Default......................................... 33
Section 7.6 Reports by Trustee to Holders............................. 33
Section 7.7 Compensation and Indemnity................................ 34
Section 7.8 Replacement of Trustee.................................... 35
Section 7.9 Successor Trustee by Xxxxxx, Etc.......................... 36
Section 7.10 Eligibility; Disqualification............................. 36
Section 7.11 Preferential Collection of Claims against Company......... 36
Section 7.12 No Bonds.................................................. 36
Section 7.13 Condition of Action....................................... 36
ARTICLE VIII.
SATISFACTION AND DISCHARGE
Section 8.1 Satisfaction, Discharge of the Indenture and
Defeasance of the Debentures.............................. 37
Section 8.2 Survival of Certain Obligations........................... 38
Section 8.3 Acknowledgment of Discharge by Trustee.................... 38
Section 8.4 Application of Trust Assets............................... 38
Section 8.5 Repayment to the Company.................................. 38
Section 8.6 Reinstatement............................................. 39
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders........ 39
Section 9.2 Amendments, Supplemental Indentures and Waivers With
Consent of Holders........................................ 40
Section 9.3 Compliance with TIA....................................... 41
Section 9.4 Revocation and Effect of Consents......................... 41
Section 9.5 Notation on or Exchange of Debentures..................... 42
Section 9.6 Trustee to Sign Amendments, Etc........................... 42
ARTICLE X.
MEETINGS OF DEBENTURE HOLDERS
Section 10.1 Purposes for Which Meetings May be Called................. 43
Section 10.2 Manner of Calling Meetings................................ 43
Section 10.3 Call of Meetings by Company or Holders.................... 43
Section 10.4 Who May Attend and Vote at Meetings....................... 44
Section 10.5 Regulations May Be Made by Trustee; Conduct of the
Meeting; Voting Rights, Adjournment....................... 44
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Section 10.6 Voting at the Meeting and Record to Be Kept............... 45
Section 10.7 Exercise of Rights of Trustee or Debentureholders
May Not Be Hindered or Delayed by Call of Meeting......... 45
ARTICLE XI.
SUBORDINATION
Section 11.1 Debentures Subordinated to Senior Indebtedness............ 46
Section 11.2 No Payment on or Acceleration of Debentures Upon Senior
Payment Default........................................... 46
Section 11.3 Debentures Subordinated to Prior Payment of All Senior
Indebtedness on Acceleration of Principal of Debentures
or on Dissolution, Liquidation or Reorganization.......... 47
Section 11.4 Debentureholders to Be Subrogated to Rights of Holders
of Senior Indebtedness.................................... 48
Section 11.5 Obligations of the Company Unconditional.................. 48
Section 11.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice......................................... 49
Section 11.7 Application by Trustee of Assets Deposited with It........ 49
Section 11.8 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.......... 50
Section 11.9 Debentureholders Authorize Trustee to Effectuate
Subordination of Debentures............................... 50
Section 11.10 Right of Trustee to Hold Senior Indebtedness.............. 51
Section 11.11 Article XI Not to Prevent Events of Default............... 51
Section 11.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.............................................. 51
ARTICLE XII.
RIGHT TO REQUIRE REPURCHASE
Section 12.1 Repurchase of Debentures at Option of the Holder Upon
Change of Control and Rating Downgrade.................... 51
Section 12.2 Repurchase Option Upon Death of Holder.................... 52
Section 12.3 Notices; Method of Exercising Repurchase Right, Etc....... 54
ARTICLE XIII.
CONVERSION OF DEBENTURES
Section 13.1 Right of Conversion; Conversion Price..................... 56
Section 13.2 Issuance of Shares on Conversion.......................... 56
Section 13.3 No Adjustment for Interest or Dividends................... 57
Section 13.4 Adjustment of Conversion Price............................ 57
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Section 13.5 Notice of Adjustment of Conversion Price.................. 59
Section 13.6 Notice of Certain Corporation Action...................... 60
Section 13.7 Taxes on Conversions...................................... 61
Section 13.8 Fractional Shares......................................... 61
Section 13.9 Cancellation of Converted Debentures...................... 61
Section 13.10 Provisions in Case of Consolidation, Merger or Sale of
Assets.................................................... 61
Section 13.11 Disclaimer by Trustee of Responsibility for Certain
Matters................................................... 62
Section 13.12 Covenant to Reserve Shares................................ 63
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 TIA Controls.............................................. 63
Section 14.2 Notices................................................... 63
Section 14.3 Communications by Holders With Other Holders.............. 64
Section 14.4 Certificate and Opinion as to Conditions Precedent........ 64
Section 14.5 Statements Required in Certificate or Opinion............. 64
Section 14.6 Legal Holidays............................................ 65
Section 14.7 Governing Law............................................. 65
Section 14.8 No Adverse Interpretation of Other Agreements............. 65
Section 14.9 No Recourse Against Others................................ 66
Section 14.10 Successors................................................ 66
Section 14.11 Duplicate Originals....................................... 66
Section 14.12 Severability.............................................. 66
Section 14.13 Table of Contents, Headings, Etc.......................... 66
Exhibit A FORM OF DEBENTURE
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INDENTURE, dated as of January __, 1996, by and between Mercury
Air Group, Inc., a New York corporation (the "Company"), and IBJ Xxxxxxxx
Bank & Trust Company, a banking corporation organized and existing under
the laws of the State of New York, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's __%
Convertible Subordinated Debentures due February ___, 2006:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Acceleration Notice" shall have the meaning specified in Section
6.2 hereof.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, co-Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors
"Board of Directors" means, with respect to any Person, the Board
of Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Change of Control" means, except as described below, the
occurrence of any of the following events, whether or not approved by the Board
of Directors of the Company: (i) any person is or becomes the beneficial owner,
directly or indirectly, of securities representing more than 50% of the total
number of votes that may be cast for the election of directors of the Company or
(ii) any person acquires from the Company more than 50% of the assets or earning
power of the Company and its subsidiaries. For the purposes of this
definition, "person" means a person or group (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable), together with any affiliates or associates thereof, but does not
include Xxxxxxx Xxxx or any subsidiary of the Company and "beneficial
ownership" shall be determined pursuant to the provisions of Rules 13d-3 and
13d-5 under the Exchange Act, whether or not applicable, except that a person
shall have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time. For the purpose of clause (i) above, a Change of Control
shall be deemed to occur when the Company receives a Schedule 13D or Schedule
13G relating to the change in beneficial ownership or at such earlier time as
the Company becomes aware of the change in beneficial ownership.
"Closing Price" means, with respect to the shares of Common Stock
of the Company on any day, (i) the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the American Stock
Exchange, or (ii) if the shares of Common Stock are not listed or admitted to
trading on the American Stock Exchange, the last reported sales price regular
way, or in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, on the principal national
securities exchange on which the shares of Common Stock are listed or admitted
to trading, or (iii) if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the average of the closing bid and
asked price as furnished by any New York Stock Exchange member firm selected
from time to time by the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock of the Company, par value
$0.01 per share.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the Company
by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, or by another officer
of the Company duly authorized to sign by a Board Resolution, and delivered to
the Trustee.
"Conversion Agent" shall have the meaning specified in Section 2.3
hereof.
"conversion price" shall have the meaning specified in Section
13.1 hereof.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
2
"current market price" shall have the meaning specified in Section
13.4(f) hereof.
"Debenture Register" shall have the meaning specified in Section
2.5 hereof.
"Debentures" means the _____% Convertible Subordinated
Debentures due February ___, 2006, which Debentures are definitive and fully
registered as outlined in Section 2.6 hereof and authenticated and delivered
under this Indenture in accordance with its terms.
"Default" means an event or condition, the occurrence of which is,
or with the lapse of time or giving of notice, or both, would be, an Event of
Default.
"Defaulted Interest" shall have the meaning specified in Section
2.12 hereof.
"Depository" means, with respect to any Debenture issuable or
issued in the form of one or more global Debentures, the Person designated as
Depository by the Company in or pursuant to this Indenture, which Person must
be, to the extent required by applicable law or regulation, a clearing agency
registered under the Exchange Act, and, if so provided with respect to any
Debenture, any successor to such Person. If at any time there is more than one
such Person, "Depository" shall mean, with respect to any Debentures, the
qualifying entity which has been appointed with respect to such Debentures.
"Event of Default" shall have the meaning specified in Section 6.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Final Repurchase Put Date" shall have the meaning specified in
Section 12.3 hereof.
"GAAP" means generally accepted accounting principles as in effect
in the United States from time to time.
"Holder" or "Debentureholder" means the Person in whose name a
Debenture is registered on the Registrar's books.
"Indebtedness" with respect to any Person means: (i) any debt (a)
for money borrowed (other than the Debentures), or (b) evidenced by a bond,
note, debenture, or similar instrument (including purchase money obligations)
given in connection with the acquisition of any business, property or assets,
whether by purchase, merger, consolidation, or otherwise, but shall not include
any account payable or other obligation created or assumed by a Person in the
ordinary course of business in connection with the obtaining of materials or
services, or (c) which is a direct or indirect obligation which arises as a
result of banker's acceptances or bank letters of credit issued to secure
obligations of such Person, or to secure the payment of revenue bonds issued for
the benefit of such Person, whether contingent or otherwise; (ii) any debt of
others described in the preceding clause (i) which such Person has guaranteed or
for which it is
3
otherwise liable; (iii) the obligation of such Person as lessee under any lease
of property which is reflected on such Person's balance sheet as a capitalized
lease; and (iv) any deferral, amendment, renewal, extension, supplement or
refunding of any liability of the kind described in any of the preceding clauses
(i), (ii) and (iii), PROVIDED, HOWEVER, that, in computing the Indebtedness
of any Person, there shall be excluded any particular indebtedness if, upon or
prior to the maturity thereof, there shall have been deposited with a depository
in trust money (or evidence of indebtedness if permitted by the instrument
creating such indebtedness) in the necessary amount to pay, redeem or satisfy
such indebtedness as it becomes due, and the amount so deposited shall not be
included in any computation of the assets of such Person.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Interest Payment Date" means the stated due date of an
installment of interest on the Debentures.
"Issue Date" means the date of initial issuance of the Debentures
under this Indenture.
"Legal Holiday" shall have the meaning specified in Section 14.6
hereof.
"Maturity Date," when used with respect to any Debenture, means
the date on which the principal of such Debenture becomes due and payable as
therein or herein provided, whether at the Stated Maturity or Repurchase Date or
by declaration of acceleration, call for redemption or otherwise.
"Officer" means, with respect to the Company, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or
Executive Vice President, the Chief Financial Officer, the Treasurer, the
Controller or the Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of the Company and otherwise complying with the requirements of Sections 14.4
and 14.5 hereof.
"Opinion of Counsel" means a written opinion from legal counsel
complying with the requirements of Sections 14.4 and 14.5 hereof. Unless
otherwise reasonably required by the Trustee, the counsel may be inside counsel
to the Company.
"Over-Allotment Option" means the option of the Underwriters to
purchase additional Debentures in the aggregate principal amount of up to
$3,750,000 as provided in Section 2.2 hereof.
"Paying Agent" shall have the meaning specified in Section 2.3
hereof.
4
"Person" means any corporation, individual, joint stock company,
joint venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
"Rating Downgrade" means a decrease by one or more gradations
(including gradations within rating categories as well as between rating
categories) of the investment rating assigned to the Debentures by any
nationally recognized statistical rating organization, provided that such
downgrade occurs on, or within 90 days after, the earlier to occur of (i) the
occurrence of a Change of Control or (ii) public notice of the occurrence of a
Change of Control or the intention by the Company to effect a Change of Control
(which period shall be extended so long as the rating of the Debentures is under
publicly announced consideration for possible downgrade by any nationally
recognized statistical rating organization).
"Record Date" means a Record Date specified in the Debentures
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Debenture or
Debentures to be redeemed, means the date fixed for such redemption pursuant to
this Indenture and Paragraph 5 in the form of Debenture attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Debenture or
Debentures to be redeemed, means the redemption price for such redemption
pursuant to Paragraph 5 in the form of Debenture attached hereto as Exhibit A.
"Registrar" shall have the meaning specified in Section 2.3
hereof.
"Repurchase Date" shall have the meaning specified in Section 12.1
hereof.
"Repurchase Offer" shall have the meaning specified in Section
12.3 hereof.
"Repurchase Price" shall have the meaning specified in Section
12.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Senior Indebtedness" means the principal of, premium, if any,
unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not a claim for post-filing interest is allowed in such proceeding), fees,
charges, expenses, reimbursement and indemnification obligations, and all other
amounts payable under or in respect of Indebtedness of the Company, whether any
such Indebtedness exists as of the date of this Indenture or is created,
incurred, assumed or guaranteed after such date, other than (i) Indebtedness
that by its terms or by operation of law is subordinated to or on a parity with
the Debentures and (ii) Indebtedness owed to a Subsidiary.
5
"Senior Payment Default" shall have the meaning specified in
Section 11.2 hereof.
"Special Payment Date" shall have the meaning specified in Section
2.12 hereof.
"Special Record Date" for payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 2.12 hereof.
"Stated Maturity," when used with respect to any Debenture, means
February ___, 2006.
"Subsidiary" means, with respect to any Person, (i) a corporation
at least 50% of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any other Person (other than a corporation or a
partnership) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has (1) at least a 50% ownership interest
or (2) the power to elect or direct the election of the directors or other
governing body of such Person.
"Surviving Person" shall have the meaning specified in Section
5.1(a) hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as provided in Section 9.3 hereof.
"Trading Day" means any day other than any day on which securities
are not traded on the applicable securities exchange or in the applicable
securities market.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice president,
assistant vice president, secretary, assistant secretary or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the Persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the corporate trust department (or any successor group) of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"Underwriters" means the parties underwriting the offering of the
Debentures.
6
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
SECTION 1.2 INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures.
"obligor" on the indenture securities means the Company and any
other obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the
plural include the singular;
(e) provisions apply to successive events and transactions;
(f) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(g) references to Sections or Articles mean reference to such
Section or Article in this Indenture, unless stated otherwise.
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ARTICLE II.
THE DEBENTURES
SECTION 2.1 FORM AND DATING.
The Debentures and the Trustee's certificate of authentication,
in respect thereof, shall be substantially in the form of Exhibit A hereto,
which is part of this Indenture, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends, notations or endorsements placed thereon as
may be required by law to comply with the rules of any securities exchange,
usage, or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution thereof. The
Company shall approve the form of the Debentures and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not
contained in the form of Debenture attached as Exhibit A hereto shall be made
in accordance with Section 9.5 hereof. Each Debenture shall be dated the
date of its authentication.
The terms and provisions contained in the forms of Debentures
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. In the event of any inconsistency between the Debentures and
the Indenture, the Indenture controls.
The Debentures will initially be represented by one or more global
securities which shall bear the legend set forth in Exhibit A hereto and shall
be deposited with The Depository Trust Company ("DTC"), as Depository, or an
agent of DTC.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Debentures for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Debentures and may be in facsimile form.
If an Officer whose signature is on a Debenture was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Debenture, the Debenture shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Debentures and
this Indenture.
A Debenture shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Debenture
and such signature shall be conclusive evidence that the Debenture has been
authenticated pursuant to the terms of this Indenture.
8
The Trustee shall authenticate Debentures for original issue in
the aggregate principal amount of up to $25,000,000 (or up to $28,750,000 if the
Over-Allotment Option is exercised) upon a written order of the Company signed
by two Officers or by an Officer and Assistant Treasurer or Assistant Secretary
of the Company. The written order shall specify the amount of Debentures to be
authenticated and the date on which the Debentures are to be authenticated. The
aggregate principal amount of Debentures outstanding at any time may not exceed
$25,000,000 (or up to $28,750,000 if the Over-Allotment Option is exercised),
except as provided in Section 2.7 hereof. Upon a written order of the Company
signed by two Officers or by an Officer and Assistant Treasurer or Assistant
Secretary for the Company, the Trustee shall authenticate Debentures in
substitution of Debentures originally issued to reflect any name change of the
Company.
Upon receipt by the Trustee of a Company Order stating that the
Underwriters have exercised the Over-Allotment Option for a specified
aggregate principal amount of additional Debentures not to exceed a total of
$3,750,000 pursuant to the Underwriting Agreement, dated January___, 1996,
between the Company and the Underwriters, the Trustee shall authenticate and
make available for delivery such specified aggregate principal amount of such
additional Debentures to or upon the Company's request, and such specified
aggregate principal amount of such additional Debentures shall be considered
part of the original aggregate principal amount of the Debentures.
The Trustee may appoint an authenticating agent to authenticate
Debentures. Unless otherwise provided in the appointment, an authenticating
agent may authenticate Debentures whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with any obligor, any Affiliate of any obligor, or any of
their respective Subsidiaries.
Unless otherwise provided in or pursuant to this Indenture,
debentures shall be issuable only in global form without coupons.
SECTION 2.3 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain an office or agency where Debentures
may be presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Debentures may be presented for payment ("Paying Agent")
and an office or agency where Debentures may be presented for conversion
("Conversion Agent"). Notices and demands to or upon the Company in respect of
the Debentures may be served as is provided in Section 14.2 hereof. The Company
or an Affiliate of the Company may act as Registrar, Paying Agent or Conversion
Agent, except that, for the purposes of Articles III, VIII and XII hereof,
neither the Company nor any Affiliate of the Company shall act as Paying Agent.
The Registrar shall keep a register of the Debentures and of their transfer and
exchange as provided in Section 2.5 hereof.
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The Company may have one or more co-Registrars, one or more
additional Paying Agents and one or more additional Conversion Agents. The term
"Paying Agent" includes any additional Paying Agent and the term "Conversion
Agent" includes any additional Conversion Agent. The Company may change any
Registrar, co-Registrar, Paying Agent, Conversion Agent or agent for service of
notices and demands on 30 days' prior notice to the Trustee.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee in writing in advance of the name and address
of any such Agent. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, the Trustee shall
act as such.
The Company hereby appoints the Trustee as Registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands, and the
Trustee hereby agrees so to act.
SECTION 2.4 PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, the Debentures (whether such
assets have been distributed to it by the Company or any other obligor on the
Debentures), and shall notify the Trustee in writing of any Default in making
any such payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall segregate such assets and hold them as a separate trust fund for
the benefit of the Holders. The Company at any time may require
a Paying Agent to distribute all assets held by it to the Trustee and account
for any assets disbursed and the Trustee may at any time during the continuance
of any payment Default, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and to account
for any assets distributed. Upon distribution to the Trustee of all assets that
shall have been delivered by the Company to the Paying Agent, the Paying Agent
(if other than the Company or an Affiliate of the Company) shall have no further
liability for such assets.
SECTION 2.5 DEBENTUREHOLDER LISTS.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency designated pursuant to this Section 2.5 being
herein sometimes collectively referred to as the "Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration, transfer and exchange of
Debentures. The Registrar shall preserve in the Debenture Register, in as
current a form as is reasonably practicable, the most recent list available
to the Registrar of the names and addresses of Holders. If the Trustee is
not the Registrar, the Company shall furnish to the Trustee on or before the
third Business Day after the record date to which such interest payment
relates and at such other times as the Trustee may request in
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writing a list in such form and as of such date as the Trustee reasonably may
require of the names, addresses and tax identification numbers of Holders.
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) When Debentures (other than Debentures in global form)
are presented to the Registrar or a co-Registrar with a request to register
the transfer of such Debentures or to exchange such Debentures for an equal
principal amount of Debentures of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested provided the requirements for such transaction are met; PROVIDED,
HOWEVER, that the Debentures surrendered for transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in
writing. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Debentures at the
Registrar's or co-Registrar's request. No service charge shall be made for
any registration of transfer or exchange, but the Company or the Trustee may
require payment of a sum sufficient to cover any transfer tax, assessment, or
similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessment, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.2, 2.10, 3.7, 9.5, 12.1, 12.1 or
13.2 hereof).
Notwithstanding the foregoing, except as otherwise provided in
or pursuant to this Indenture, any global Debenture shall be exchangeable for
definitive Debentures only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 60 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Debenture shall be so
exchangeable, or (iii) an Event of Default or an event which, with the giving
of notice or lapse of time or both, would constitute an Event of Default has
occurred and is continuing with respect to the Debentures. A global
Debenture that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Debentures issuable in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depository
holding such global Debenture shall direct. If the beneficial owners of
interests in a global Debenture are entitled to exchange such interests for
definitive Debentures of like tenor of any authorized form and denomination
as specified as contemplated by Section 2.10, then without unnecessary delay
but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee an adequate supply
of definitive Debentures in such form and denominations as are required by or
pursuant to this Indenture containing identical terms and in aggregate
principal amount equal to the principal amount of, such global Debenture,
executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Debentures shall be surrendered
from time to time by the Depository, and in accordance with instructions
given to the Trustee and the Depository (which instructions shall be in
writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged PROVIDED, HOWEVER, that no
such exchanges may occur during a period beginning at the opening of business
15 days before any such selection of
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Debentures for redemption, to be redeemed and ending on the relevant Redemption
Date. Promptly following any such exchange in part, such global Debenture shall
be returned by the Trustee to such Depository in accordance with the
instructions of the Company referred to above. If a Debenture is issued in
exchange for any portion of a global Debenture after the close of business at
the office or agency for such Debenture where such exchange occurs on or after
(i) any Regular Record Date and before the opening of business at such office or
agency on the next Interest Payment Date, or (ii) any Special Record date and
before the opening of business at such office or agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of such Debenture, but shall
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such global Debenture shall be payable in accordance with the provisions of this
Indenture.
(b) The Company shall not be required (i) to issue, register
the transfer of or exchange any Debenture for a period beginning 10 Business
Days before the mailing of a notice of an offer to repurchase pursuant to
Article XII hereof or redeem Debentures pursuant to Article III hereof and
ending at the close of business on the day of such mailing or (ii) to
register the transfer or exchange of any Debenture selected for redemption in
whole or in part pursuant to Article III, except the unredeemed portion of
any Debenture being redeemed in part. The Company shall indemnify the
Registrar or co-Registrar for all claims, costs and expenses incurred by it
in connection with refusing to transfer Debentures as instructed by the
Company.
SECTION 2.7 REPLACEMENT DEBENTURES.
If a mutilated Debenture is surrendered to the Trustee or if the
Holder of a Debenture claims and submits to the Trustee an affidavit or other
evidence, satisfactory to the Company and Trustee, to the effect that the
Debenture has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Debenture if the Company's and
the Trustee's requirements are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Debenture
is replaced. Upon the issuance of any new Debenture under this Section 2.7, 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.
The provisions of this Section 2.7 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 Debentures. Every replacement
Debenture is an additional obligation of the Company.
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SECTION 2.8 OUTSTANDING DEBENTURES.
Debentures outstanding at any time are all the Debentures that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.8 as not
outstanding. A Debenture does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Debenture, except as provided in
Section 2.9 hereof.
If a Debenture is replaced pursuant to Section 2.7 hereof (other
than a mutilated Debenture surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a BONA FIDE purchaser. A mutilated Debenture
ceases to be outstanding upon surrender of such Xxxxxxxxx and replacement
thereof pursuant to Section 2.7 hereof.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds U.S. Legal Tender
or U.S. Government Obligations sufficient to pay all of the principal of,
premium, if any, and interest due on the Debentures payable on that date, then
on and after that date such Debentures shall cease to be outstanding and
interest on such Debentures shall cease to accrue. Any obligations pursuant
to such Debentures shall be satisfied pursuant to Section 8.1 hereof.
SECTION 2.9 TREASURY DEBENTURES.
In determining whether the Holders of the required principal
amount of Debentures have concurred in any direction, amendment, supplement,
waiver or consent, Debentures owned by the Company and Affiliates of the Company
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Debentures that the Trustee knows or has
reason to know are so owned shall be disregarded.
SECTION 2.10 TEMPORARY DEBENTURES.
Until definitive Debentures are ready for delivery, the Company
may prepare, and the Trustee shall authenticate, temporary Debentures.
Temporary Debentures shall be substantially in the form of definitive Debentures
but may have variations that the Company reasonably and in good faith considers
appropriate for temporary Debentures. Except in the case of temporary
Debentures in global form, which shall be exchanged in accordance with the
provisions thereof, without unreasonable delay, the Company shall prepare, and
the Trustee shall authenticate, definitive Debentures in exchange for temporary
Debentures. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Debenture, until so exchanged, the temporary
Debentures shall in all respects be entitled to the same benefits under this
Indenture as permanent Debentures authenticated and delivered hereunder.
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SECTION 2.11 CANCELLATION.
The Company at any time may deliver Debentures to the Trustee for
cancellation which the Company may have acquired in any manner whatsoever, and
all Debentures so delivered shall be promptly cancelled by the Trustee. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the
Trustee any Debentures surrendered to them for transfer, payment or exchange.
The Trustee, or at the direction of the Trustee, the Registrar, the Paying Agent
or Conversion Agent (other than the Company or an Affiliate of the Company),
shall cancel and, at the written direction of the Company, shall dispose of all
Debentures surrendered for transfer, payment, exchange or cancellation. Subject
to Section 2.7 hereof, the Company may not issue new Debentures to replace
Debentures it has paid or delivered to the Trustee for cancellation. No
Debentures shall be authenticated in lieu of or in exchange for any Debentures
cancelled as provided in this Section 2.11, except as expressly permitted in the
form of Debentures and as permitted by this Indenture.
SECTION 2.12 DEFAULTED INTEREST.
Interest on any Debenture 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 Debenture (or one or more predecessor Debentures) is
registered at the close of business on the Record Date for such interest.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant 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 any Defaulted
Interest to the Persons in whose names the Debentures (or their respective
predecessor Debentures) 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 Debenture, 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 fixed for payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as provided in
this clause (a). Thereupon the Trustee shall fix a Special Record Date and
special payment date (the "Special Payment Date") for the payment of such
Defaulted Interest. The Special Record Date shall be not more than 15 days and
not less than 10 days prior to the Special Payment Date. The Special Payment
Date shall be not more than 60 days after receipt by the Trustee of the notice
to pay the Defaulted Interest. The Trustee shall promptly notify the Company
for 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
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his address as it appears in the Debenture Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be published at
least once in a newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debentures (or their respective predecessor Debentures) are registered
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 Debentures 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 accompanied by an Opinion of
Counsel stating that the manner of payment complies with this clause, such
manner shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Debenture delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.13 CUSIP NUMBER.
The Company may use a "CUSIP" number when issuing the Debentures,
and if so, the Trustee may use the CUSIP number in notices of redemption or
exchange as a convenience to Debentureholders; 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 Debentures, and that reliance may
be placed only on the other identification numbers printed on the Debentures.
SECTION 2.14. DEBENTURES IN GLOBAL FORM.
The Debentures shall initially be issued in global form (i.e., in
the name of the nominee of a Depository for purposes of book-entry transfer) and
one or more Debentures shall represent the aggregate amount of all outstanding
Debentures from time to time endorsed thereon and may provide that the aggregate
amount of outstanding Debentures represented thereby may from time to time be
increased or reduced to reflect exchanges, repurchases and redemptions. Any
endorsement of any Debenture in global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
outstanding Debentures represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein or in a written order of
the Company signed by two Officers or by an Officer and Assistant Treasurer or
Assistant Secretary for the Company. The Trustee shall deliver and redeliver
any Debenture in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the written order of the
15
Company signed by two Officers or by an Officer and Assistant Treasurer or
Assistant Secretary for the Company.
ARTICLE III.
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION.
Redemption of Debentures, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision
and this Article III. The Debentures may be redeemed at the election of the
Company, in whole or in part, at any time on or after February __, 1999, at
the applicable Redemption Prices specified in Paragraph 5 of the form of
Debenture attached as Exhibit A hereto, set forth therein under the caption
"Optional Redemption," plus accrued and unpaid interest to but excluding the
Redemption Date. In addition, the Debentures may be redeemed at the election
of the Company, in whole or in part, at any time on or after February __,
1998 and before February __, 1999, at a Redemption Price of 105% of the
principle amount of the Debentures plus accrued and unpaid interest to but
excluding the Redemption Date if the Closing Price shall have been at least
140% of the conversion price for at least 20 Trading Days within a period of
30 consecutive Trading Days ending not more than five Trading Days prior to
the date of the notice of such redemption.
SECTION 3.2 NOTICES TO TRUSTEE.
If the Company elects to redeem Debentures pursuant to Paragraph 5
of the Debentures, it shall notify the Trustee in writing of the Redemption Date
and the principal amount of Debentures to be redeemed and whether the Company or
the Trustee is to give notice of redemption to the Holder or Holders.
The Company shall give each notice to the Trustee provided for in
this Section 3.2 at least 45 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee).
SECTION 3.3 SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all of the Debentures are to be redeemed pursuant
to Paragraph 5(a) of the Debentures, the Trustee shall, as it determines in
its sole discretion, redeem the Debentures either PRO RATA or by lot or in
such other manner as complies with any applicable legal and stock exchange
requirements.
The Trustee shall make the selection from the Debentures
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Debentures selected for redemption and, in the
case of any Debenture selected for partial redemption, the principal amount
thereof to be redeemed. Debentures in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Debentures that have
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denominations larger than $1,000. Provisions of this Indenture that apply to
Debentures called for redemption also apply to portions of Debentures called for
redemption.
SECTION 3.4 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee and each Holder whose Debentures are to be redeemed
pursuant to Paragraph 5 of the Debentures at his address appearing in the
Debenture Register.
Each notice of redemption shall identify the Debentures to be
redeemed and shall state the following and such other matters as the Company
shall deem proper:
(a) the Redemption Date;
(b) the Redemption Price and the fact that accrued and
unpaid interest will be paid upon such redemption;
(c) the name and address of the Paying Agent;
(d) that Debentures called for redemption must be surrendered
to the Paying Agent at the address specified in such notice to collect the
Redemption Price plus accrued and unpaid interest;
(e) that, unless the Company defaults in its obligation to
deposit U.S. Legal Tender with the Paying Agent in accordance with Section 3.6
hereof, interest on Debentures called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders of such
Debentures is to receive payment of the Redemption Price and accrued and unpaid
interest, upon surrender to the Paying Agent of the Debentures called for
redemption and to be redeemed;
(f) if any Debenture is being redeemed in part, the portion of
the principal amount, equal to $1,000 or any integral multiple thereof, of such
Debenture that will not be redeemed and that, after the Redemption Date, and
upon surrender of such Debenture, a new Debenture or Debentures in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(g) if less than all the Debentures are to be redeemed, the
identification of the particular Debentures (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Debentures to be redeemed and
the aggregate principal amount of Debentures to be outstanding after such
partial redemption; and
(h) that the notice is being provided pursuant to this
Section 3.4 and pursuant to the redemption provisions of Paragraph 5 of the
Debentures.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. If a CUSIP
number is listed in such notice or printed on the Debenture, the notice shall
state that no representation is made as to the correctness or accuracy of such
CUSIP number.
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4
hereof, Debentures called for redemption become due and payable on the
Redemption date at the Redemption Price plus accrued and unpaid interest to the
Redemption Date. Upon surrender to the Trustee or Paying Agent, such Debentures
called for redemption shall be paid on the Redemption Date at the Redemption
Price plus interest, if any, accrued and unpaid to the Redemption Date;
PROVIDED that if the Redemption Date is after a regular Record Date and on or
prior to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Debentures registered as of the close of business on the
relevant Record Date; and PROVIDED, FURTHER, that if a Redemption Date is a
Legal Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit
with the Paying Agent (other than the Company or an Affiliate of the Company)
U.S. Legal Tender sufficient to pay the Redemption Price of and accrued and
unpaid interest on all Debentures to be redeemed on such Redemption Date
(other than Debentures or portions thereof called for redemption on that date
that have been delivered by the Company to the Trustee for cancellation or
Debentures or portions thereof previously cancelled because of conversion or
otherwise). The Paying Agent shall promptly return to the Company any U.S.
Legal Tender so deposited which is not required for that purpose because of
conversion or otherwise upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III, interest on the Debentures to be redeemed will
cease to accrue on the applicable Redemption Date, whether or not such
Debentures are presented for payment. Notwithstanding anything herein to the
contrary, if any Debenture surrendered for redemption in the manner provided in
the Debentures shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall
continue to accrue and be paid from the Redemption Date until such payment is
made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Debentures.
SECTION 3.7 DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Debenture or Debentures equal in principal
amount to the unredeemed portion of the Debenture surrendered. If a Debenture
in global form is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depository for such Debenture in
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global form as shall be specified in the Company Order with respect thereto to
the Trustee, without service charge, a new Debenture in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Debenture in global form so surrendered in accordance with
the Depository's procedures as then in effect.
ARTICLE IV.
COVENANTS
SECTION 4.1 PAYMENT OF DEBENTURES.
The Company shall pay the principal of, premium, if any, and
interest on the Debentures on the dates and in the manner provided in the
Debentures. An installment of principal of, premium, if any, or interest on the
Debentures shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 10:00 a.m. New York City time on that
date, U.S. Legal Tender deposited and designated for and sufficient to pay the
installment in accordance with the Depository arrangements.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Debentures compounded
semi-annually, to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company or the Trustee may, to the extent required by law, deduct
or withhold income or other similar taxes imposed by the United States of
America or any state or other political jurisdiction thereof from principal of,
premium, if any, or interest payments on the Debentures.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, New York,
New York an office or agency where Debentures may be presented or surrendered
for payment, where Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company shall give prior
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 address of the Trustee set forth in Section 14.2 hereof. Such
office may be an office maintained directly or indirectly by the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures 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
New York, New York for such purposes. The Company shall give prior
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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. The Company hereby
initially designates the Corporate Trust Office of the Trustee (or the office of
the agent of the Trustee) in New York, New York as such office of the Company.
SECTION 4.3 CORPORATE EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate or other existence of each of its
Subsidiaries in accordance with the respective organizational documents of each
of them; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such existence if (a) the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and (b) the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 4.4 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall, and shall cause each of its Subsidiaries to,
comply with or contest in good faith all statutes and governmental regulations
and pay all taxes, assessments, governmental charges, claims for labor,
supplies, rent and any other obligations which, if unpaid, might become a lien,
charge or encumbrance against any of their properties, except liabilities being
contested in good faith and against which adequate reserves have been
established.
SECTION 4.5 MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company shall maintain or shall cause to be maintained in good
working order and condition (ordinary wear and tear excepted) the properties
necessary to its and its Subsidiaries' operations and shall make or shall cause
to be made all needed repairs, replacements and renewals as are necessary to
conduct its business and the businesses of its Subsidiaries in accordance with
customary business practices. The Company and each of its Subsidiaries will
cause insurance, in favor of the Company or the Subsidiaries, to be maintained
with responsible insurers with respect to each of the Company's and the
Subsidiaries' properties and businesses against such casualties and
contingencies as shall be in accordance with general practices of businesses
engaged in similar activities in similar geographic areas.
SECTION 4.6 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 45 days
after the end of each of its fiscal quarters an Officers' Certificate. The
Officers' Certificate for the third quarter shall comply with the annual
reporting requirements of Section 314(a)(4) of the TIA (including the
required signatory provisions) and stating that a review of its activities
and the activities of its Subsidiaries during the preceding fiscal quarter
has been made under the supervision of the signing Officers with a view to
determining whether the Company and its Subsidiaries have kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating,
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as to each such Officer signing such certificate, whether or not to the best
knowledge of the signers thereof the Company or any Subsidiary of the Company
has failed to comply with any conditions or covenants in this Indenture, or if
the Company shall be in Default, the occurrence of any Default, and, if such
xxxxxx does know of such a failure to comply or Default, the certificate shall
describe such failure or Default with reasonable particularity.
(b) The Company shall, so long as any of the Debentures are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be
deemed to have knowledge of a Default or an Event of Default unless one of its
Trust Officers receives notice of the Default giving rise thereto from the
Company or any of the Holders.
SECTION 4.7 SEC REPORTS.
The Company shall deliver to the Trustee and each Holder, within
10 days after it files the same with the SEC, copies of all reports and
information (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe), if any, which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act provided
that in the case of annual reports, information may be incorporated by reference
and furnished to Holders at the time and in the manner in which such information
is required to be furnished to the Company's common stockholders. The Company
agrees to continue to comply with the filing and reporting requirements of the
SEC as long as any of the Debentures are outstanding; PROVIDED, that if the
Company is not subject to the filing and reporting requirements of the SEC at
any time, (a) the Company shall provide the Trustee and each Holder with the
reports and information (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which are specified in Section
13 or 15(d) of the Exchange Act as if the Company were subject to such filing
and reporting requirements, and (b) the Company shall provide copies of such
reports and information to any prospective holder of the Debentures promptly
upon written request and payment of reasonable costs of duplication and
delivery. The Record Date to identify the Holders to whom such reports shall be
furnished shall be no longer than 60 days prior to the date on which such
reports are first mailed to the Holders of the Debentures.
SECTION 4.8 LIMITATIONS ON STATUS AS INVESTMENT COMPANY.
The Company shall not, and shall not permit any of its
Subsidiaries to, become an "investment company" (as that term is defined in the
Investment Company Act of 1940, as amended) or otherwise become subject to
regulation under such Investment Company Act.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other similar law which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, or interest on
the Debentures as contemplated herein, wherever enacted, now or at any
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time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
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 V.
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.
(a) The Company shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person, or, directly or indirectly, sell, lease, assign, transfer or convey or
otherwise dispose of all or substantially all of its assets (computed on a
consolidated basis), to another Person or group of Affiliated Persons, unless:
(i) either (A) the Company shall be the continuing Person,
or (B) the Person formed by such consolidation or into which the Company are
transferred as an entirety or substantially as an entirety (the Company or such
other Person being hereinafter referred to as the "Surviving Person") shall be a
corporation or partnership organized and validly existing under the laws of the
United States, any state therefor or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee on or prior to the consummation of such transaction, in form
satisfactory to the Trustee, all the obligations of the Company under the
Debentures and this Indenture;
(ii) 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
(iii) the Company has delivered to the Trustee an
Officers' Certificate stating that such consolidation, merger, sale, lease,
assignment, transfer, conveyance or other disposition and such supplemental
indenture comply with this Article V and that all conditions precedent herein
provided relating to such transaction have been satisfied, including an Opinion
of Counsel with respect to the matters set forth in paragraph (a)(i) of this
Section 5.1.
(b) For purposes of clause (a), the sale, lease, assignment,
transfer, conveyance, or other disposition of all or substantially all of the
properties and assets of one or more wholly owned Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
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SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon consolidation or merger, or any transfer or disposition of
assets in accordance with Section 5.1 hereof, the Surviving Person formed by
such consolidation or into which the Company is merged or to which such 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
Surviving Person had been named as the Company herein. When a Surviving Person
duly assumes all of the obligations of the Company pursuant hereto and pursuant
to the Debentures, the predecessor shall be released from such obligations.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 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 caused voluntarily or involuntarily or effected, without limitation, 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) the failure by the Company to pay installments of interest
upon any Debenture as and when the same becomes due and payable, and the
continuance of such failure for 30 days;
(b) the failure by the Company to pay all or any part of the
principal of, or premium, if any, on the Debentures when and as the same becomes
due and payable at Stated Maturity, upon redemption, upon acceleration, or
otherwise, including payment of the Repurchase Price;
(c) the failure of the Company to comply with the provisions in
Article V hereof;
(d) the failure of the Company to provide notice of a Change of
Control and a Rating Downgrade as provided in Section 12.3 hereof;
(e) the failure by the Company to observe or perform any
covenant, agreement or warranty of the Company contained in the Debentures or
this Indenture (other than a default in the performance of any covenant,
agreement or warranty which is specifically dealt with elsewhere in this Section
6.1), and continuance of such failure for the period and after the notice
specified below;
(f) (i) a default or defaults under any bond, debenture, note
or other evidence of Indebtedness for money borrowed by the Company or any
Subsidiary, or under any
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mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness of money borrowed, whether
such Indebtedness now exists or shall hereafter be created, which shall have
resulted in Indebtedness in the outstanding principal amount of at least
$5,000,000 becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such Indebtedness having
been discharged, or such acceleration having been rescinded or annulled or (ii)
a failure to pay Indebtedness in the outstanding principal amount of at least
$5,000,000 at its stated maturity after demand therefor; PROVIDED, that in
each case of (i) and (ii) above within a period of 10 days after such
acceleration or maturity 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 aggregate principal amount of the Debentures then
outstanding a written notice specifying such default and (1) requiring the
Company to cause such accelerated Indebtedness to be discharged or such
acceleration to be rescinded or annulled or (2) requiring the Company to pay the
Indebtedness which the Company failed to pay at maturity after demand therefor
and in each case stating that such notice is a "Notice of Default" hereunder;
(g) the entry by a court or courts of competent jurisdiction of
a final judgment or final judgments for the payment of money against the Company
or any Subsidiary which remain undischarged for a period (during which execution
shall not be effectively stayed, the posting of any required bond not being
deemed an execution for purposes hereof) of 30 days after all rights to appeal
have been exhausted, provided that the aggregate amount of all such judgments
exceeds $5,000,000;
(h) the entry by a court having jurisdiction in the premises of
(a) a decree or order for relief in respect of the Company or any Subsidiary in
an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (b) a decree or
order adjudging the Company or any Subsidiary as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Subsidiary
under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of their respective
property, or ordering the winding up or liquidation of 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 90 consecutive days; or
(i) the commencement by the Company or any Subsidiary 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 as bankrupt or insolvent, or the consent to the
entry of a decree or order for relief in respect of the Company or any
Subsidiary 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 of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Subsidiary or of any substantial part of their respective
property, or the making of an
24
assignment for the benefit of creditors, or the admission in writing of
inability to pay debts generally as they become due, or the taking of corporate
action by the Company or any Subsidiary in furtherance of any such action.
A Default under clause (e) above (other than in the case of any
Default under Article XII of this Indenture) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Debentures then outstanding notify the Company and the
Trustee, of the Default, and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default." Such
notice shall be given by the Trustee if so requested by the Holders of at least
25% in aggregate principal amount of the Debentures then outstanding.
In the case of any Event of Default pursuant to the provisions of
this Section 6.1 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company or any Subsidiary with the
intention of avoiding the period of time the Debentures are not optionally
redeemable or the payment of the premium which the Company would have to pay if
the Company then had elected to redeem the Debentures pursuant to Paragraph 5 of
the Debentures, an equivalent premium (or, in the case of an Event of Default
prior to the time optional redemptions are permitted, to the extent permitted by
law, a premium equal to the stated interest rate of the Debentures multiplied by
the quotient of (i) the number of full years left to maturity plus one, divided
by (ii) seven) shall also become and be immediately due and payable to the
extent permitted by law, anything in this Indenture or in the Debentures to the
contrary notwithstanding.
SECTION 6.2 ACCELERATION OF MATURITY DATE; RESCISSION AND
ANNULMENT.
Subject to Section 11.2(c), if an Event of Default (other than an
Event of Default specified in Section 6.1(h) or (i) relating to the Company or
its Subsidiaries) occurs and is continuing, then, and in every such case, unless
the principal of all of the Debentures shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debentures then outstanding, by a notice in writing to
the Company (and to the Trustee if given by Holders) (an "Acceleration Notice"),
may declare all of the principal of the Debentures, determined as set forth
below, including in each case accrued interest thereon, to be due and payable
immediately. If an Event of Default specified in Section 6.1(h) or (i) relating
to the Company or its Subsidiaries occurs, all principal of, premium, if any,
and accrued and unpaid interest on the Debentures shall be immediately due and
payable on all outstanding Debentures without any declaration or other act on
the part of the Trustee or the Holders.
At any time after such a declaration or acceleration is made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of a
majority in aggregate principal amount of the Debentures then outstanding, by
written notice to the Company and the Trustee, may waive, rescind and annul on
behalf of all Holders, any such declaration of acceleration if:
25
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Debentures;
(ii) the principal of, and premium, if any, applicable to,
any Debentures which is then due other than by such declaration of acceleration,
and interest thereon at the rate borne by the Debentures;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Debentures; and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances then due
and unpaid of the Trustee, its agents and counsel; and
(b) all Events of Default (other than the nonpayment of the
principal of, premium, if any, and interest on Debentures which have become due
solely by such declaration of acceleration) have been cured or waived as
provided in Section 6.12 hereof, including, if applicable, any Event of Default
relating to the covenants contained in Article XII hereof. No such waiver shall
cure or waive any subsequent default or impair any right consequent thereon.
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
Subject to Section 11.2 hereof, the Company covenants that if an
Event of Default in payment of principal of, premium, if any, or interest
specified in clause (a) or (b) of Section 6.1 hereof occurs and is continuing,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal, premium, if any, and interest, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal, and premium, if any, and on any overdue interest, at the rate borne
by the Debentures, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation to, and expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts within 10 days of such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
the Debentures 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 Debentures, 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
26
appropriate judicial proceedings as the Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 6.4 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
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
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 or any obligor for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise to take any and all actions under the TIA, including:
(a) to file and prove a claim for the whole amount of principal
of, premium, if any, and interest owing and unpaid in respect of the Debentures
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 agent 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;
and any debtor-in-possession custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof.
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
Debentures 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 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBENTURES.
All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the
27
Trustee shall be brought in its own name as trustee of an express trust in favor
of the Holders, and any recovery of judgment shall, after provision of the
payment of reasonable compensation to, and reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Debentures in respect of which such judgment has been
recovered.
SECTION 6.6 PRIORITIES.
Subject to the provisions of Article XI hereof, any money
collected by the Trustee pursuant to this Article VI 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, premium, if any, or
interest, upon presentation of the Debentures and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7 hereof;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium, if any, and interest on, the Debentures 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 Debentures for principal of, premium, if any, and
interest, respectively; and
THIRD: To the Company, the remainder, if any.
SECTION 6.7 LIMITATION ON SUITS.
No Holder of any Debenture shall have any right to institute or to
order or direct the Trustee 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 aggregate principal
amount of the Debentures then outstanding shall have made written request to the
Trustee to institute proceedings in respect to such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities to
be incurred or reasonably probable 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
28
(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 aggregate principal amount of the Debentures then outstanding;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture, but subject
to Section 11.2 hereof, the Holder of any Debenture shall have the right, which
is absolute and unconditional, to receive payment of the principal of, premium,
if any, and interest on, such Debenture on the Maturity Dates of such payments
as expressed in such Debenture and to institute suit for the enforcement of any
such payment after such respective dates, and such rights shall not be impaired
without the consent of such Holder.
SECTION 6.9 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures in Section 2.7
hereof, 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 6.10 DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any
Debenture to exercise any right or remedy arising upon any Event of Default
shall impair the exercise of any such right or remedy or constitute a waiver of
any such Event of Default. Every right and remedy given by this Article VI 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 6.11 CONTROL BY HOLDERS.
The Holder and Holders of a majority in aggregate principal amount
of the Debentures then outstanding 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 upon the Trustee, PROVIDED,
that
29
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.12 WAIVER OF PAST DEFAULT.
Subject to Sections 2.9 and 9.2 hereof, the Holder or Holders of
not less than a majority in aggregate principal amount of the Debentures then
outstanding may, on behalf of all Holders, prior to the declaration of the
maturity of the Debentures, waive any past default hereunder and its
consequences, except a default
(a) in the payment of the principal of, premium, if any, or
interest on, any Debenture as specified in clauses (a) and (b) of Section 6.1,
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 Debenture affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
SECTION 6.13 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Debenture by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted to be taken 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 6.13 shall not apply to any suit
instituted by the Company, to any suit, instituted by the Trustee, to any suit
instituted by the Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Debentures then outstanding, or to
any suit instituted by any Holder for enforcement of the payment of principal
of, premium, if any, or interest on, any Debenture on or after the respective
Maturity Date expressed in such Debenture (including, in the case of redemption,
on or after the Redemption Date and in the case of repurchase, on or after the
Repurchase Date).
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SECTION 6.14 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every 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 has been instituted.
ARTICLE VII.
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If a Default or 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 or her own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are adverse to
the Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
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(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
receive by it pursuant to Section 6.2 or 6.11 hereof.
(d) 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 to take or omit to take any action
of the Holders 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.
(e) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(f) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (e) of this
Section 7.1.
SECTION 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1 hereof:
(a) The Trustee may rely and shall be fully protected in acting
or refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may, in the case of any request or application by the
Company, require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Sections 14.4 and 14.5 hereof. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on written advice
from such counsel or such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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
reasonably may see fit.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders,
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pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(g) Whenever by the terms of this Indenture, the Trustee shall
be required to transmit notices or reports to any or all Holders, the Trustee
shall be entitled to rely on the information provided by the Registrar as to the
names and addresses of the Holders as being correct. If the Registrar is other
than the Trustee, the Trustee shall not be responsible for the accuracy of such
information.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Debentures and may otherwise deal with the Company, its
Subsidiaries, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Debentures; it shall not be accountable for the
Company's use of the proceeds from the Debentures; and it shall not be
responsible for (a) the use or application of any funds received by a Paying
Agent other than the Trustee or (b) any statement in the Debentures, other than
the Trustee's certificate of authentication.
The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company hereunder, except as specifically set forth herein.
SECTION 7.5 NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and
if it is known to the Trustee pursuant to Section 4.6(b) hereof, the Trustee
shall mail to each Debentureholder notice of the uncured Default or Event of
Default within 90 days after such Default or Event of Default occurs. Except in
the case of a Default or an Event of Default in payment of principal of, or
premium, if any, or interest on, any Debenture (including all payments due on
any Maturity Date), the Trustee may withhold the notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or responsible officers of the Trustee in good faith determines that
withholding the notice is in the best interest of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each September 15 beginning with the
September 15 following the date of this Indenture, the Trustee shall, if
required, mail to each Debentureholder
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a brief report dated as of such September 15 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Debentureholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Debentures are listed.
SECTION 7.7 COMPENSATION AND INDEMNITY.
For so long as any of the Debentures shall remain outstanding,
the Company covenants and agrees to pay to the Trustee (all references in
this Section 7.7 to the Trustee shall be deemed to apply to the Trustee in
its capacities as Trustee, Paying Agent and Security Registrar) from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which shall be agreed to from time to time
by the Company and the Trustee and which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and, except as herein otherwise expressly provided, the Company shall
pay or reimburse the Trustee upon its request for all reasonable expenses and
disbursements incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense or disbursement as may arise
from its gross negligence or bad faith. The Company also covenants and agrees
to indemnify the Trustee for, and to hold it harmless against, any loss,
liability, claim, damage or expense incurred without gross negligence or bad
faith on the part of the Trustee or any of its employees, officers or agents,
arising out of or in connection with the acceptance or administration of the
trust. The Company need not pay for any settlement made without its written
consent which shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability to the
extent incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Debentures on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of, and premium, if any, or interest on particular
Debentures.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(h) or (i) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the
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Company's obligations pursuant to Article VIII of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holder or Holders of a majority in aggregate principal amount of the
Debentures then outstanding may remove the Trustee by so notifying the Company
and the Trustee in writing and the Company shall appoint a successor trustee.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge
of the Trustee or its property;
(d) the Trustee becomes incapable of acting; or
(e) the Trustee fails to perform its duties, obligations and
responsibilities under this Indenture in any material respect.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder
or Holders of a majority in aggregate principal amount of the Debentures then
outstanding may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.7
hereof have been paid, the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided in Section
7.7 hereof, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
Subject to Section 310(b) of the TIA, if a successor Trustee does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holder or Holders of at least 10% in
aggregate principal amount of the Debentures then outstanding may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder who has been a bona fide holder of Debentures for at least six
months may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting surviving or transferred corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of
TIA Sections 310(a)(1), (a)(2), and (a)(5). The Trustee shall comply with
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who shall be
subject to TIA Section 311(a) to the extent indicated therein.
SECTION 7.12 NO BONDS.
The Trustee shall not be required to give any bond or surety in
respect to the execution of its trusts, powers, rights and duties under this
Indenture or otherwise in respect of the premises.
SECTION 7.13 CONDITION OF ACTION.
Notwithstanding anything elsewhere in this Indenture to the
contrary, the Trustee shall have the right, but shall not be required, to
demand, in respect of the authentication of any Debentures, any showings,
certificates, opinions, or other information, or corporate action or evidence
thereof in addition to that by the terms hereof required, as a condition of such
action by the Trustee if reasonably deemed desirable by the Trustee for the
purpose of establishing the right to the authentication of any Debentures by the
Trustee.
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ARTICLE VIII.
SATISFACTION AND DISCHARGE
SECTION 8.1 SATISFACTION, DISCHARGE OF THE INDENTURE AND
DEFEASANCE OF THE DEBENTURES.
This Indenture shall cease to be of further effect (except as to
any surviving rights of conversion, registration of transfer or exchange of
Debentures 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 Debentures theretofore authenticated and
delivered (other than (1) Debentures which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.7 hereof and (2)
Debentures for whose payment money has heretofore been deposited in trust or
segregated and held in trust by the Trustee and thereafter repaid to the Company
or discharged from such trust, as provided in Sections 8.4 and 8.5 hereof) have
been delivered to the Trustee for cancellation; or
(ii) all such Debentures not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity within one year, or
(3) 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 clauses (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee, as trust funds in an
irrevocable defeasance trust, U.S. Legal Tender or U.S. Government
Obligations sufficient to pay and discharge the entire indebtedness on such
Debentures not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest up to but excluding the Redemption
Date, the Stated Maturity or the Repurchase Date, as the case may be;
PROVIDED, HOWEVER, that the Company shall be deemed to have made the deposit
required herein as to any Debentures in respect of which the Trustee has
mailed a check to the address of the Holder, as such address appears in the
Debenture Register;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(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.
SECTION 8.2 SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture
and of the Debentures referred to in Section 8.1 hereof, the respective
obligations of the Company and the Trustee under Sections 2.2, 2.3, 2.4, 2.5,
2.6, 2.7, 2.11, Article III, Sections 4.1, 4.2, 6.8, 7.7, 7.8, 8.4, 8.5, 8.6
hereof and this Section 8.2 shall survive until the Debentures are no longer
outstanding, and thereafter the obligations of the Company and the Trustee under
Sections 6.8, 7.7, 8.4, 8.5, 8.6 hereof and this Section 8.2 shall survive.
Nothing contained in this Article VIII shall abrogate any of the obligations or
duties of the Trustee under this Indenture.
SECTION 8.3 ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
After (a) the conditions of Section 8.1 hereof have been
satisfied, (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 as provided for in Section 8.1
hereof, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.2 hereof.
SECTION 8.4 APPLICATION OF TRUST ASSETS.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable defeasance trust established
pursuant to Section 8.1 hereof. The Trustee shall apply the deposited U.S.
Legal Tender or U.S. Government Obligations, together with earnings thereon,
through the Paying Agent (other than the Company or any Affiliate of the
Company), in accordance with this Indenture and the terms of the irrevocable
trust agreement, if any, to the payment of principal of, premium, if any, and
interest on the Debentures.
SECTION 8.5 REPAYMENT TO THE COMPANY.
Upon termination of the trust established pursuant to Section 8.1
hereof, the Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess U.S. Legal Tender or U.S. Government Obligations held by
them.
The Trustee and the Paying Agent shall pay to the Company upon
request, and, if applicable, in accordance with the irrevocable trust
established pursuant to Section 8.1 hereof, any U.S. Legal Tender or U.S.
Government Obligations held by them for the payment of principal of, premium, if
any, or interest on the Debentures that remain unclaimed for two years after the
date on which such payment shall have become due; PROVIDED, HOWEVER, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may, at the
38
expense of the Company, cause to be published once, in a newspaper 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
shall be repaid to the Company. After payment to the Company, Holders entitled
to such payment must look to the Company for such payment as general creditors
unless an applicable abandoned property law designates another Person.
SECTION 8.6 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Sections 8.4 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 8.4 hereof; PROVIDED, HOWEVER, that if the Company
has made any payment of principal of, premium, if any, or interest on any
Debentures because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Debentures to receive such
payment from the U.S. Legal Tender or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holder, the Company, when authorized by
Board Resolutions, 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 cure any ambiguity, defect, or inconsistency, or to make
any other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (a) shall not adversely affect the
interests of any Holder in any respect;
(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 to make any other change that does not adversely affect the rights of any
Holder, PROVIDED, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change does not adversely affect the rights of any
Holder;
39
(c) to provide for collateral for the Debentures for the
benefit of the Holders;
(d) to evidence the succession of any other Person to the
Company and the assumption by any such successor of the obligations of the
Company herein and in the Debentures in accordance with Article V; or
(e) to comply with the TIA or SEC requirements under the TIA.
SECTION 9.2 AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS
WITH CONSENT OF HOLDERS.
Subject to Sections 2.9 and 6.8 hereof, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Debentures then outstanding, by written act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by Board Resolutions, and
the Trustee may amend or supplement this Indenture or the Debentures or 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 Debentures or of modifying in any manner the rights of the
Holders under this Indenture or the Debentures. Subject to Sections 2.9 and 6.8
hereof, the Holder or Holders of not less than a majority in aggregate principal
amount of the Debentures then outstanding may waive compliance by the Company
with any provision of this Indenture or the Debentures. Notwithstanding any of
the above, however, no such amendment, supplemental indenture or waiver shall,
without the consent of the Holder of each outstanding Debenture affected
thereby:
(a) reduce the percentage of principal amount of Debentures
whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Debentures;
(b) reduce the rate or extend the time for payment of interest
on any Debenture;
(c) reduce the principal amount of any Debenture, or reduce the
Repurchase Price or the Redemption Price;
(d) (i) change the Stated Maturity of any Debenture or (ii)
change the Repurchase Date of any Debenture;
(e) alter (i) the redemption provisions of Article III hereof
or paragraph 5 of the Debentures, (ii) the terms or provisions of Article XII
hereof in a manner adverse to any Holder or (iii) the conversion provisions of
Article XII hereof or paragraph 14 of the Debentures;
(f) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Debentures (except to increase
any required percentage or to provide that certain other provisions hereof
cannot be modified or waived without the consent of the Holders of each
outstanding Debenture affected thereby) or the rights of Holders to
40
recover the principal of, premium, if any, interest on, or redemption payments
with respect to, any Debenture; or
(g) make the principal of, premium, if any, or the interest on,
any Debenture payable with anything or in any manner other than as provided for
in this Indenture (including changing the place of payment where, or the coin or
currency in which, any Debenture or any premium or the interest thereon is
payable) and the Debentures as in effect on the date hereof.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to all Holders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
After an amendment, supplement or waiver under this Section 9.2
or under Section 9.4 hereof becomes effective, it shall bind each Holder and
subsequent Holder of a Debenture.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3 COMPLIANCE WITH XXX
Every amendment, waiver or supplement of this Indenture or the
Debentures shall comply with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Any amendment, waiver, or supplement shall be effective upon
receipt by the Trustee of an Officers' Certificate and Opinion of Counsel
from the Company that such amendment or waiver has been authorized by the
Company and that the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures then outstanding has been
obtained, unless such consents specify that they shall become effective at a
later date, in which case such amendment or waiver shall become effective in
accordance with the terms of such consent, and upon execution of a supplemental
Indenture in the case of an amendment to this Indenture.
Until such time of effectiveness, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a
Debenture or portion of a Debenture that evidences the same debt as the
consenting Xxxxxx's Debenture, even if notation of the consent is not made on
any Debenture. However, any such Holder or subsequent Holder may revoke the
consent as to his Debenture or portion of his Debenture by written notice to
the Company or the Person designated by the Company as the Person to whom
consents should be sent if such revocation is received by the Company or such
Person before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the
41
requisite principal amount of Debentures have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Debentureholder; PROVIDED, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of,
premium, if any, and interest on a Debenture, on or after the respective dates
set for such amounts to become due and payable expressed in such Debenture, or
to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.5 NOTATION ON OR EXCHANGE OF DEBENTURES.
If an amendment, supplement or waiver changes the terms of a
Debenture, the Company may require the Holder of the Debenture to deliver it
to the Trustee to put an appropriate notation on the Debenture. The Trustee
shall, if so directed by the Company, place an appropriate notation on the
Debenture about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Debenture shall issue and the Trustee shall authenticate a
new Debenture that reflects the changed terms. Any failure to make the
appropriate notation or to issue a new Debenture shall not affect the
validity of such amendment, supplement or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; PROVIDED, that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee at the expense of the Company shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture.
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ARTICLE X.
MEETINGS OF DEBENTURE HOLDERS
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Debentureholders may be called at any time and from
time to time pursuant to the provisions of this Article X for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waiver or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by Debentureholders pursuant to any of the
provisions of Article VI hereof;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article VII hereof;
(c) to consent to an amendment, supplement or waiver pursuant
to the provisions of Section 9.2 hereof; or
(d) to take any other action (i) authorized to be taken by or
on behalf of the Holder or Holders of any specified aggregate principal amount
of the Debentures under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
SECTION 10.2 MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Debentureholders to
take any action specified in Section 10.1 hereof, to be held at such time and at
such place in The City of New York, New York or elsewhere as the Trustee shall
determine. Notice of every meeting of Debentureholders, setting forth the time
and place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed by the Trustee, first-class postage prepaid, to
the Company and to the Holders at their last addresses as they shall appear on
the registration books of the Registrar, not less than 10 nor more than 60 days
prior to the date fixed for a meeting.
Any meeting of Debentureholders shall be valid without notice if
the Holders of all Debentures then outstanding are present in Person or by
proxy, or if notice is waived before or after the meeting by the Holders of all
Debentures outstanding, and if the Company and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived
notice.
SECTION 10.3 CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution,
or the Holders of not less than 10% in aggregate principal amount of the
Debentures then outstanding,
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shall have requested the Trustee to call a meeting of Debentureholders to take
any action specified in Section 10.1 hereof, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders of Debentures in the
amount above specified may determine the time and place in The City of New York,
New York or elsewhere for such meeting and may call such meeting for the purpose
of taking such action, by mailing or causing to be mailed notice thereof as
provided in Section 10.2 hereof, or by causing notice thereof to be published at
least once in each of two successive calendar weeks (on any Business Day during
such week) in a newspaper or newspapers printed in the English language,
customarily published at least five days a week of a general circulation in The
City of New York, State of New York, the first such publication to be not less
than 10 nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.4 WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Debentureholders, a
Person shall (a) be a registered Holder of one or more Debentures or (b) be a
Person appointed by an instrument in writing as proxy for the registered Holder
or Holders of Debentures. The only Persons who shall be entitled to be present
or to speak at any meeting of Debentureholders shall be the Persons entitled to
vote at such meeting and their counsel and any representative of the Trustee and
its counsel and any representative of the Company and its counsel.
SECTION 10.5 REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS, ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any action by
or any meeting of Debentureholders, in regard to proof of the holding of
Debentures and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, and submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Such
regulations may fix a record date and time for determining the Holders of record
of Debentures entitled to vote at such meeting, in which case those and only
those Persons who are Holders of Debentures at the record date and time so
fixed, or their proxies, shall be entitled to vote at such meeting whether or
not they shall be such Holders at the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a chairman
and secretary of the meeting, unless the meeting shall have been called by the
Company, in which case the Company shall in like manner appoint a chairman and
secretary. In the case of meetings called by Debentureholders as provided by
Section 10.3 hereof, the Debentureholders calling the meeting shall by an
instrument in writing appoint a temporary chairman and temporary secretary with
a permanent chairman and a permanent secretary of the meeting to be elected by
vote of the Holders of a majority in aggregate principal amount of the
Debentures then outstanding represented at the meeting and entitled to vote.
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At any meeting each Debentureholder or proxy shall be entitled to
one vote for each $1,000 principal amount of Debentures held or represented by
him; PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting
in respect of any Debentures challenged as not outstanding and ruled by the
chairman of the meeting to be not then outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Debentures held by him or
instruments in writing as aforesaid duly designating him as the proxy to vote on
behalf of other Debentureholders. Any meeting of holders duly called pursuant
to the provisions of Section 10.2 or Section 10.3 hereof may be adjourned from
time to time by vote of the Holder or Holders of a majority in aggregate
principal amount of the Debentures then outstanding represented at the meeting
and entitled to vote, and the meeting may be held as so adjourned without
further notice.
SECTION 10.6 VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of
Debentureholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debentures or of their representatives by proxy and
the principal amount of the Debentures voted by the ballot. The chairman of the
meeting shall appoint two inspectors of votes, who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Debentureholders shall be prepared by the secretary of the meeting
and there shall be attached to such record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that such notice was mailed as provided in Section
10.2 hereof or published as provided in Section 10.3 hereof. The record shall
be signed and verified by the affidavits of the chairman and the secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 10.7 EXERCISE OF RIGHTS OF TRUSTEE OR DEBENTUREHOLDERS
MAY NOT BE HINDERED OR DELAYED BY CALL OF MEETING.
Nothing contained in this Article X shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Debentureholders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Debentureholders under any of the provisions
of this Indenture or of the Debentures.
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ARTICLE XI.
SUBORDINATION
SECTION 11.1 DEBENTURES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, for itself and its successors, and each Holder, by
his acceptance of Debentures, agrees that (a) the payment of the principal of,
premium, if any, and interest on the Debentures and (b) any payment on account
of the acquisition or redemption of the Debentures by the Company including,
without limitation, pursuant to Section 12.1 hereof, is subordinated, to the
extent and in the manner provided in this Article XI, to the prior payment in
full of all Senior Indebtedness of the Company and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
This Article XI shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 11.2 NO PAYMENT ON OR ACCELERATION OF DEBENTURES UPON
SENIOR INDEBTEDNESS DEFAULT.
No payment shall be made by the Company on account of principal
of, premium, if any, or interest on the Debentures or on account of the
redemption, repurchase, acceleration or other acquisition of Debentures of the
Company, if there shall have occurred and be continuing any default or event
of default with respect to any Senior Indebtedness (a "Senior Indebtedness
Default") until such Senior Indebtedness Default shall have been cured or
waived or shall have ceased to exist, or if such payment shall cause a Senior
Indebtedness Default.
In furtherance of the provisions of Section 11.1 hereof, in the
event that, notwithstanding the foregoing provisions of this Section 11.2, any
payment or distribution of assets on account of principal of, premium, if any,
or interest on the Debentures or to defease or acquire any of the Debentures
(including repurchases of Debentures pursuant to Article XII hereof) for cash,
property or securities, on or account of the redemption provisions of the
Debentures shall be made by the Company and received by the Trustee, by any
Holder or by an Paying Agent (or, if the Company is acting as its own Paying
Agent, money for any such payment shall be segregated and held in trust), at a
time when such payment or distribution was prohibited by the provisions of this
Section 11.2, then, unless such payment or distribution is no longer prohibited
by this Section 11.2, such payment or distribution (subject to the provisions of
Sections 11.6 and 11.7 hereof) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of Senior
Indebtedness, and shall be paid or delivered by the Trustee or such Holders or
such Paying Agent, as the case may be, to the holders of Senior Indebtedness
remaining unpaid and unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness held or represented by
each, to the extent necessary to enable payment in full (except as such payment
otherwise shall have been
46
provided for), of all Senior Indebtedness remaining unpaid, after giving effect
to all concurrent payments and distributions and all provisions therefor, to or
for the holders of such Senior Indebtedness, but only to the extent that as to
any holder of such Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of such Senior Indebtedness that such
prohibited payment has been received by the Trustee, Holder(s) or Paying Agent
(or a representative thereof) notifies the Trustee of the amounts then due and
owing on such Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders of
such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
SECTION 11.3 DEBENTURES SUBORDINATED TO PRIOR PAYMENT OF ALL
SENIOR INDEBTEDNESS ON ACCELERATION OF PRINCIPAL OF DEBENTURES OR ON
DISSOLUTION, LIQUIDATION OR REORGANIZATION.
No enforcement action shall be taken against the Company or any
of its assets to collect the Debentures until the expiration of one hundred
eighty (180) days after the date on which the Trustee gives written notice to
the holders of all Senior Indebtedness of an Event of Default hereunder, and
during such one hundred eighty (180) day period, each holder of any Senior
Indebtedness shall have the right (but not the obligation) to cure, or to
cause the Company to cure, such Event of Default. Any and all liens and
security interests now or hereafter held on account of the Debentures shall
be subordinate and subject to any and all liens and security interests now or
hereafter held on account of any Senior Indebtedness.
Upon any acceleration of the principal of the Debentures or any
distribution of assets of the Company upon any dissolution, winding up, total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or similar proceeding or
upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full (or to have such payment duly provided for)
of the principal of, premium, if any, and interest on and all other amounts
payable in respect thereof, before the Holders are entitled to receive any
payment on account of the principal of, premium, if any, and interest on the
Debentures;
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article XI, shall be paid by the liquidating trustee or agent
or other Person making such a payment or distribution, directly to the holders
of Senior Indebtedness or their representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full (or have such payment duly provided
for) of all such Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefore to or for the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or the Holders or
any Paying Agent (or, if the Company is acting as its own Paying Agency, money
for any such payment or distribution shall be segregated or held in trust) on
account of principal of, premium, if any, or interest on the Debentures, as the
case may be, before all Senior Indebtedness is paid in full (or provision made
therefor), such payment or distribution (subject to the provisions of Sections
11.6 and
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11.7 hereof) shall be received and held in trust by the Trustee or such Holder
or Paying Agent for the benefit of the holders of such Senior Indebtedness, or
their respective representative, ratably according to the respective amounts of
Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full (except as such payment otherwise shall have been provided for)
of all such Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to or for the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of such Senior Indebtedness, as promptly as practical following notice
from the Trustee to the holders of such Senior Indebtedness that such prohibited
payment has been received by the Trustee, Holder(s) or Paying Agent (or has been
segregated as provided above), such holder (or a representative therefor)
notifies the Trustee of the amounts then due and owing on such Senior
Indebtedness, if any, held by such holder and only the amounts specified in such
notices to the Trustee shall be paid to the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 11.4 DEBENTUREHOLDERS TO BE SUBROGATED TO RIGHTS OF
HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness (or
provision made for its payment), the Holders of Debentures shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Debentures shall be paid in full, and for the
purpose of such subrogation no such payments or distribution to the holders of
such Senior Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article XI, which otherwise would have been made
to the Holders shall, as between the Company and the Holders be deemed to be
payment by the Company, to or on account of such Senior Indebtedness, it being
understood that the provisions of this Article XI are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XI shall
have been applied, pursuant to the provisions of this Article XI, to the payment
of amounts payable under Senior Indebtedness, then the Holders shall be entitled
to receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness in full.
SECTION 11.5 OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article XI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the
48
principal of, premium, if any, and interest on the Debentures as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of the
Company other than the holders of the Senior Indebtedness, nor shall anything
herein or in the Debentures, prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XI, of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Notwithstanding anything to the
contrary in this Article XI or elsewhere in this Indenture or in the Debentures
upon any distribution of assets of the Company referred to in this Article XI,
the Trustee, subject to the provisions of Sections 7.1 and 7.2 hereof, and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XI. Nothing in this Section 11.5 shall apply to the claims of,
or payments to, the Trustee under or pursuant to Section 7.7 hereof.
SECTION 11.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED
IN ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have received, no later than three Business Days prior to such payment,
written notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.1
and 7.2 hereof, shall be entitled in all respects conclusively to assume that no
such fact exists, and subject to the provisions contained in the first
paragraph of Section 11.3 hereof.
SECTION 11.7 APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
U.S. Legal Tender or U.S. Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 8.1 or 8.2
hereof shall be for the sole benefit of Debentureholders and, to the extent (i)
the making of such deposit by the Company shall not have been in contravention
of any term or provision of any agreement creating or evidencing Senior
Indebtedness and (ii) allocated for the payment of Debentures, shall not be
subject to the subordination provisions of this Article XI. Otherwise, any
deposit of assets by the Company with the Trustee or any Paying Agent (whether
or not in trust) for the payment of principal of, premium, if any, or interest
on any Debentures shall be subject to the provisions of Sections 11.1, 11.2,
11.3 and 11.4 hereof; PROVIDED, that, if prior to the third Business Day
preceding the date on which by the terms of this Indenture any such assets may
become distributable for any purpose (including without limitation, the payment
of principal of, premium, if any, or interest on any Debenture) the Trustee or
such Paying Agent shall not have received with respect to such assets the
written notice provided for in Section 11.6 hereof, then
49
the Trustee or such Paying Agent shall have full power and authority to receive
such assets and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received by
it on or after such date.
SECTION 11.8 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article XI
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof with which any such holder
may have or be otherwise charged. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with the Company all without affecting the liabilities and obligations of
the parties to this Indenture or the Holders of the Debentures or the
subordination provisions of this Article XI or the rights of holders of Senior
Indebtedness to enforce such provisions.
SECTION 11.9 DEBENTUREHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF DEBENTURES.
Each Holder of the Debentures by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate under this Indenture to effectuate the subordination
provisions contained in this Article XI and to protect the rights of the
Holders, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company) tending towards liquidation
of the business and assets of the Company, the immediate filing of a claim for
the unpaid balance of his Debentures in the form required in said proceedings
and causing said claim to be approved. If the Trustee does not file a proper
claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the holders
of the Senior Indebtedness or their representative are or is hereby authorized
to have the right to file and are or is hereby authorized to file an appropriate
claim for and on behalf of the Holders of said Debentures. Nothing herein
contained shall be deemed to authorize the Trustee or the holders of Senior
Indebtedness or their representative to authorize or consent to or accept or
adopt on behalf of any Debentureholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Indebtedness or
their representative to vote in respect of the claim of any Debentureholder in
any such proceeding, and the authority granted herein to holders of Senior
Indebtedness shall not impose any duty or other obligation on such holders to
take any action or refrain from any action with respect to any such plan or
proceeding.
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SECTION 11.10 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all of the rights set forth in
this Article XI in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
SECTION 11.11 ARTICLE XI NOT TO PREVENT EVENTS OF DEFAULT.
Subject to the provisions contained in the first paragraph of
Section 11.3 hereof, the failure to make a payment on account of principal
of, premium, if any, or interest on the Debentures by reason of any provision
of this Article XI shall not be construed as preventing the occurrence of a
Default or an Event of Default under Section 6.1 hereof or in any way prevent
the Holders from exercising any right hereunder other than the rights to
receive payment on the Debentures and to accelerate the maturity thereof.
SECTION 11.12 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Debentures or the Company or
any other Person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XI or otherwise.
Nothing in this Section 11.12 shall affect the obligation of the Holders or the
Company or any other Person to hold such payment for the benefit of, and to pay
such payment over to, the holders of Senior Indebtedness or their
representative.
ARTICLE XII.
RIGHT TO REQUIRE REPURCHASE
SECTION 12.1 REPURCHASE OF DEBENTURES AT OPTION OF THE HOLDER
UPON CHANGE OF CONTROL AND RATING DOWNGRADE.
In the event that a Change of Control and a Rating Downgrade
occur, each Holder of Debentures shall have the right, at such Holder's
option, subject to the terms and conditions set forth herein, to require the
Company to repurchase all or any part of such Holder's Debentures (provided
that the principal amount of such Debentures at maturity must be $1,000 or an
integral multiple thereof) on a date that is no later than 45 calendar days
after the date the Company gives notice of such Change of Control and a
Rating Downgrade (the "Repurchase Date"), at a cash purchase price (the
"Repurchase Price") equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to but excluding the Repurchase Date.
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SECTION 12.2 REPURCHASE OPTION UPON DEATH OF HOLDER.
(a) Upon the death of any Holder of Debentures, and upon the
further receipt by the Company or the Trustee of a written request for
repayment and satisfaction of the conditions set forth in subsection (b)
below, the Company shall be required to pay, in accordance with the terms
of this Article, the Repurchase Price (excluding any premium) of, and
(except if the repayment date described below shall be an Interest
Payment Date) any accrued interest on all or such portion (which portion
shall be an integral multiple of $1,000) of the Debenture or Debentures
held by the deceased Holder at the date of his death as requested,
PROVIDED that the Company shall not be required to make repayment
payments aggregating more than $100,000 in principal amount (plus accrued
interest) in any calendar year on a Debenture or Debentures held by any
one deceased Holder or aggregating more than $500,000 in principal amount
(plus accrued interest) during any calendar year held by any number of
deceased Holders (the "Maximum Annual Repayment Amount"). Subject to
subsection (b) below, repayment of such Debentures shall be made in the
order in which requests therefor are received (subject to the Maximum
Annual Repayment Amount) within 60 days following receipt by the Company
or the Trustee of the following:
(1) a written request for repayment of the Debenture or
Debentures signed by a duly authorized representative of the Holder,
which request shall set forth the name of the deceased Holder, the date
of death of the deceased Xxxxxx, and the principal amount of the
Debenture or Debentures to be repaid; and
(2) the certificates representing the Debenture or Debentures
to be repaid; and
(3) evidence satisfactory to the Company and the Trustee of the
death of such deceased Xxxxxx and the authority of the representative to
such extent as may be required by the Trustee.
Debentures not repaid in any calendar year because of the Maximum Annual
Repayment Amount may be held or the unpaid portion reissued by the Trustee at
its option upon notification to the representative of the deceased Holder
and repaid in subsequent years in the order in which such Debentures are
received.
(b) A Debenture or Debentures held by the deceased Holder shall
not be entitled to repayment pursuant to this Section 12.2 unless all of
the following conditions are met:
(1) the Debentures to be repaid shall have been
registered on the register maintained by the Registrar in the name
of the deceased Holder since the Issue Date of such Debenture or
for a period of at least six months prior to the date of the
deceased Xxxxxx's death, whichever is less; and
52
(2) the Company or the Trustee shall have received a
written request for repayment within one year after the date of
the deceased Xxxxxx's death or, in the case of requests for a
subsequent repayment of a Debenture or Debentures held by such
deceased Xxxxxx, within one year after any such preceding request;
and
(3) the Company shall not, after giving effect to such
repayment, have made repayment payments aggregating more than the
Maximum Annual Repayment Amount within the then current calendar
year; and
(4) the Company shall not be subject to any law,
regulation, agreement or administrative directive preventing such
repayment.
(c) Authorized representatives of a Holder shall include the
following: executors, administrators or other legal representatives of
an estate; trustees of a trust; joint owners of Debentures owned in joint
tenancy or tenancy by the entirety; custodians; conservators; guardians;
attorneys-in-fact; and other Persons generally recognized as having legal
authority to act on behalf of another.
(d) For purposes of this Section 12.2, the death of a Person
owning a Debenture or Debentures in joint tenancy or tenancy by the
entirety with another or others shall be deemed the death of the Holder
of the Debenture or Debentures, and the entire principal amount of the
Debenture or Debentures so held shall be subject to repayment, together
with accrued interest thereon to the repayment date, in accordance with
the provisions of this Article. For purposes of this Section 12.2, the
death of a Person owning a Debenture or Debentures by tenancy in common
shall be deemed the death of a Holder of Debenture or Debentures only
with respect to the deceased Xxxxxx's interest in the Debenture or
Debentures so held by tenancy in common; except that in the event a
Debenture or Debentures are held by husband and wife as tenants in
common, the death of either shall be deemed the death of the Holder of
the Debenture or Debentures and the entire principal amount of the
Debenture or Debentures so held shall be subject to repayment in
accordance with the provisions of this Article. The Company shall
give the Trustee a Company Order specifying the repayment amount in
the event of the death of a Person owning a Debenture or Debentures
by tenancy in common and the exercise of the repurchase rights provided
in this Section 12.2. A Person who, during such Person's lifetime, was
entitled to substantially all of the beneficial interests of ownership
of Debentures will, upon such Person's death, be deemed the Holder
thereof for purposes of this Section 12.2, regardless of the registered
holder, if such beneficial interest can be established to the
satisfaction of the Trustee. Such beneficial interest will be deemed to
exist in typical cases of nominee ownership, ownership under the Uniform
Transfers (or Gifts) to Minors Act, community property or other joint
ownership arrangements between a husband and wife, and trust arrangements
where one Person has substantially all of the beneficial ownership
interests in Debentures during such Person's lifetime. Beneficial
interests shall include the power to sell, transfer or otherwise
dispose of Debentures and the right to receive the proceeds therefrom,
as well as the principal thereof, interest thereon and any premium,
with respect thereto.
53
(e) If Debentures are issuable in global form (i.e., in the
name of the nominee of a Depository for purposes of book-entry transfer),
the Company or the Trustee may adopt appropriate procedures to allow
beneficial owners of Debentures to obtain payment in accordance with the
requirements of the Depository in the event of a request for repayment of
the Debentures pursuant to this Section.
SECTION 12.3 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT,
ETC.
(a) Within 30 calendar days after the occurrence of a Change
of Control and a Rating Downgrade, the Company shall make an irrevocable
unconditional offer (a "Repurchase Offer") to the Holders to purchase for
U.S. Legal Tender all the Debentures pursuant to the offer described in
clause (b) of this Section 12.3 at the Repurchase Price plus accrued and
unpaid interest, if any, to but excluding the Repurchase Date. Within five
Business Days after each date upon which the Company receives notice or
otherwise obtains knowledge of the occurrence of a Change of Control
requiring the Company to make a Repurchase Offer pursuant to Section 12.1
hereof, the Company shall so notify the Trustee.
(b) Notice of a Repurchase Offer shall be sent, not more than
30 calendar days after the occurrence of the Change of Control and a Rating
Downgrade by first class mail, by the Company to each Holder at its registered
address, with a copy to the Trustee. The notice to the Holders shall contain
all instructions and materials required by applicable law and shall contain or
make available to Holders other information material to the decision of Holders
generally to tender Debentures pursuant to the Repurchase Offer. No failure of
the Company to give such notice or defect therein shall limit any Holder's right
to exercise his repurchase right or affect the validity of the proceedings for
the repurchase of the Debentures. The notice, which shall govern the terms of
the Repurchase Offer, shall state that:
(i) the Repurchase Offer is being made pursuant to such
notice and this Article XII and that all Debentures, or portions thereof,
properly tendered pursuant to the Repurchase Offer prior to the fifth Business
Day prior to the Repurchase Date (the "Final Repurchase Put Date") will be
accepted for payment;
(ii) the Repurchase Price, the Repurchase Date and the
Final Repurchase Put Date;
(iii) that any Debenture, or portion thereof, not tendered
or accepted for payment will continue to accrue interest, if interest is then
accruing;
(iv) that, unless the Company defaults in depositing U.S.
Legal Tender with the Paying Agent in accordance with the last paragraph of
clause (c) of this Section 12.3 or payment is otherwise prevented, any
Debentures, or portion thereof, accepted for payment pursuant to the Repurchase
Offer shall cease to accrue interest after the Repurchase Date;
(v) that Holders electing to have a Debenture, or portion
thereof, purchased purchase to a Repurchase Offer will be required to surrender
the Debenture, with the
54
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Debenture completed, to the Paying Agent (which may not for purposes of this
Article XII, notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in the notice
prior to the close of business on the Final Repurchase Put Date;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, prior to the close of business on the
Final Repurchase Put Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Debentures the
Holder is withdrawing and a statement containing a facsimile signature that such
Xxxxxx is withdrawing his election to have such principal amount of Debentures
purchased;
(vii) that Holders whose Debentures were purchased only in
part will be issued new Debentures equal in principal amount to the unpurchased
portion of the Debentures surrendered; and
(viii) a brief description, to the extent known to the
Company, of the events resulting in such Change of Control and a statement as to
the rating assigned to the Debentures after the Rating Downgrade.
(c) Any such Repurchase Offer shall comply with all
applicable provisions of federal and state laws, including those regulating
tender offers, if applicable, and any provisions of this Indenture which
conflict with such laws shall be deemed to be superseded by the provisions of
such laws. On or before the Repurchase Date, the Company shall (a) accept
for payment Debentures or portions thereof properly tendered pursuant to the
Repurchase Offer prior to the close of business on the Final Repurchase Put
Date, (b) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Repurchase Price plus accrued and unpaid interest, if any, to the
Repurchase Date of all Debentures so tendered and (c) deliver to the Trustee
Debentures so accepted together with an Officers' Certificate listing the
Debentures or portions thereof being purchased by the Company as well as
those Debentures to be authenticated as indicated hereunder. The Paying
Agent shall promptly mail to the Holders of Debentures so accepted payment in
an amount equal to the Repurchase Price plus accrued and unpaid interest, if
any, to the Repurchase Date, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Debenture equal in principal amount to
any unpurchased portion of the Debenture surrendered. Any Debentures not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof and the principal shall, until paid, bear interest to the extent
permitted by applicable law from the Repurchase Date at the rate borne by the
Debenture and each Debenture shall remain convertible into Common Stock as
outlined in Article XIII hereof until the principal of such Debenture shall
have been paid or duly provided for. The Company shall publicly announce the
results of the Repurchase Offer on or as soon as practicable after the
Repurchase Date.
55
ARTICLE XIII.
CONVERSION OF DEBENTURES
SECTION 13.1 RIGHT OF CONVERSION; CONVERSION PRICE.
Subject to the provision of Section 14 of the Debentures and
Section 13.13 hereof, the Holder of any Debenture or Debentures shall have the
right, at his option, at any time before the close of business on
February __, 2006 (except that, with respect to any Debenture or portion of
a Debenture which shall be called for redemption, such right shall terminate at
the close of business on the fifth calendar day prior to the date fixed for
redemption of such Debenture or portion of a Debenture unless the Company shall
default in payment due upon redemption thereof), to convert, subject to the
terms and provisions of this Article XIII, the principal of any such Debenture
or Debentures or any portion thereof which is $1,000 principal amount or an
integral multiple thereof into shares of Common Stock, initially at the
conversion price per share of $________; or, in case an adjustment of such price
has taken place pursuant to the provisions of Section 13.4 hereof, then at the
price as last adjusted (such price or adjusted price being referred to herein as
the "conversion price"), upon surrender of the Debenture or Debentures, the
principal of which is so to be converted, accompanied by written notice of
conversion duly executed, to the Company, at any time during usual business
hours at the office or agency maintained by it for such purpose, and, if so
required by the Conversion Agent or Registrar, accompanied by a written
instrument or instruments of transfer in form satisfactory to the Conversion
Agent or Registrar duly executed by the Holder or his duly authorized
representative in writing. For convenience, the conversion of any portion of
the principal of any Debenture or Debentures into Common Stock is hereinafter
sometimes referred to as the conversion of such Debenture or Debentures.
SECTION 13.2 ISSUANCE OF SHARES ON CONVERSION.
As promptly as practicable after the surrender, as herein
provided, of any Debenture or Debentures for conversion, the Company shall
deliver or cause to be delivered at its said office or agency, to or upon the
written order of the Holder of the Debenture or Debentures so surrendered,
certificates representing the number of fully paid and nonassessable shares
of Common Stock into which such Debenture or Debentures may be converted in
accordance with the provisions of this Article XIII. Such conversion shall
be deemed to have been made as of the close of business on the date that such
Debenture or Debentures shall have been surrendered for conversion in proper
form with a written notice of conversion duly executed, so that the rights of
the Holder of such Debenture or Debentures as a Debentureholder shall cease
at such time and, subject to the following provisions of this paragraph, the
Person or Persons entitled to receive the shares of Common Stock upon
conversion of such Debenture or Debentures shall be treated for all purposes
as having become the record holder or holders of such shares of Common Stock
at such time and such conversion shall be at the conversion price in effect
at such time; PROVIDED, HOWEVER, that no such surrender on any date when the
stock transfer books of the Company shall be closed shall be effective to
constitute the Person or Persons entitled to receive the shares of Common
Stock upon such conversion as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute
56
the Person or Persons entitled to receive such shares of Common Stock as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; such
conversion shall be at the conversion price in effect on the date that such
Debenture or Debentures shall have been surrendered for conversion, as if the
stock transfer books of the Company had not been closed.
Upon conversion of any Debenture which is converted in part only,
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Debenture or Debentures of authorized denominations in principal amount equal to
the unconverted portion of such Debenture.
SECTION 13.3 NO ADJUSTMENT FOR INTEREST OR DIVIDENDS.
No payment or adjustment in respect of interest on the Debentures
or dividends on the shares of Common Stock shall be made upon the conversion of
any Debenture or Debentures; PROVIDED, HOWEVER, that if a Debenture or any
portion thereof (other than a Debenture or portion thereof called for
redemption) shall be converted subsequent to any Record Date and on or prior to
the next succeeding Interest Payment Date, the interest falling due 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 such
Debenture is registered at the close of business on such Record Date and
Debentures surrendered for conversion during the period from the close of
business on any Record Date to the opening of business on the corresponding
Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date. No such additional funds shall
be required from Holders for Debentures called for redemption and converted.
SECTION 13.4 ADJUSTMENT OF CONVERSION PRICE.
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in shares of Common
Stock or any class of capital stock of the Company, the conversion price in
effect at the opening of business on the day following the date fixed for the
determination of stockholders 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 shares of Common Stock outstanding
at the close of business on the date 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 date fixed for such determination.
(b) In case the Company shall issue rights, options or warrants
to all or substantially all holders of its shares of Common Stock entitling them
to subscribe for or purchase shares of Common Stock at a price per share less
than the current market price per share (determined as provided in paragraph (f)
of this Section 13.4) of Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the conversion price
in effect at the opening of business on the day following the date fixed for
such
57
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the
subscription price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such reduction
to become effective immediately after the opening of business on the day
following the date fixed for such determination. In the event that all of the
shares of Common Stock subject to such rights or warrants have not been issued
when such rights or warrants expire, then the conversion price shall promptly be
readjusted to the conversion price which would then be in effect had the
adjustment upon the issuance of such rights or warrants been made on the basis
of the actual number of shares of Common Stock issued upon the exercise of such
rights or warrants. For the purposes of this paragraph (b), the number of
shares of Common Stock 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 shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(c) In case the outstanding shares of Common Stock shall be
subdivided or reclassified into a greater number of shares, the conversion price
in effect at the opening of business on the day following the day upon which
such subdivision or reclassification becomes effective shall be proportionately
reduced, and, conversely, in case outstanding shares of Common Stock shall be
combined into a smaller number of 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,
reclassification or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all or substantially all holders of shares of Common Stock
evidences of indebtedness or assets of the Company or rights or warrants to
acquire such evidences of indebtedness or assets (including securities, but
excluding any (i) rights, options or warrants referred to in paragraph (b) of
this Section 13.4 and (ii) any dividend or distribution referred to in paragraph
(a) of this Section 13.4), 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 day fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (f) of this Section 13.4) of Common Stock
on the date fixed for such determination less the then fair market value as
determined by the Board of Directors (whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidences of indebtedness so distributed allocable to one share of
Common Stock and the denominator shall be such current market price per share of
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
58
(e) In case the shares of Common Stock shall be changed into
the same or a different number of shares of any class or classes of stock,
whether by capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or a stock dividend described in paragraph
(a) or paragraph (c) of this Section 13.4, or a consolidation, merger or sale of
assets described in Section 13.10 hereof), then and in each such event the
Holders of Debentures shall have the right thereafter to convert such Debentures
into the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification or other change, by
holders of the number of shares of Common Stock into which such Debentures might
have been converted immediately prior to such reorganization, reclassification
or change.
(f) For the purpose of any computation under paragraphs (b) and
(d) of this Section 13.4, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Closing Prices for the 15
consecutive Trading Days selected by the Company commencing not more than 30 and
not less than 20 Trading Days before the date in question.
(g) No adjustment in the conversion price shall be required
unless such adjustment (plus any adjustments not previously made by reason of
this paragraph (g)) would require an increase or decrease of at least $0.125;
PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph
(g) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (g) shall
be made to the nearest cent.
(h) The Company may, but shall not be required to, make such
reductions in the conversion price, in addition to those required by paragraphs
(a), (b), (c) and (d) of this Section 13.4, as the Company's Board of Directors,
in its discretion, considers to be advisable. The Company's Board of Directors
shall have the power to resolve any ambiguity or correct any error in the
adjustments made pursuant to this Section 13.4 and its actions in so doing shall
be final and conclusive.
(i) No adjustment in the conversion price need be made for
rights to purchase or the sale of the Common Stock pursuant to a Company plan
providing for reinvestment of dividends or interest; PROVIDED, HOWEVER, that
any discount under such plan may not exceed 5% of the current market price of
the Common Stock and such plan is registered under the Securities Act.
SECTION 13.5 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 13.4 and shall prepare an Officers' Certificate setting
forth the adjusted conversion price and showing in reasonable detail the facts
upon which such adjustment is based on the computation thereof, and such
certificate shall forthwith be filed at each office or agency
59
maintained for the purpose of conversion of Debentures pursuant to Section 2.3
hereof and with the Trustee; and
(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 to all Holders at their last addresses as
they shall appear in the Debenture Register.
SECTION 13.6 NOTICE OF CERTAIN CORPORATION ACTION.
(a) In case:
(i) the Company shall authorize the granting to holders
of its shares of Common Stock of rights or warrants entitling them to subscribe
for or purchase any shares of capital stock of any class or of any other rights;
or
(ii) of any reclassification of the shares of Common
Stock, or of any consolidation or merger to which the Company is a part and for
which approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(iii) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Debentures pursuant to Section 2.3 and shall cause
to be mailed to all Holders at their last addresses as they shall appear in the
Debenture Register, at least 10 days (or 20 days in any case specified in clause
(iii) above) prior to the applicable record date hereinafter specified, a notice
stating (1) 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 shares of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants is to be determined,
or (2) 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 shares of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Such notice shall also state whether such
transaction will result in the adjustment in the conversion price applicable to
the Debentures and, if so, shall state what the adjusted conversion price will
be and when it will become effective. Neither the failure to give the notice
required by this Section 13.6, nor any defect therein, to any particular Holder
shall affect the sufficiency of the notice or the legality or validity of any
such dividend, distribution, right, warrant, reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding-up, or the vote on
any action authorizing such with respect to the other Holders.
(b) In case the Company or any Affiliate of the Company shall
propose to engage in a "Rule 13e-3 Transaction" (as defined in the SEC's Rule
13e-3 under the Exchange
60
Act) the Company shall, no later than the date on which any information with
respect to such Rule 13e-3 Transaction is first required to be given to the SEC
or any other person pursuant to such Rule 13e-3, cause to be mailed to all
Holders at their last addresses as they shall appear in the Debenture Register,
a copy of all information required to be given to the SEC or such other person
pursuant to such Rule 13e-3. The information required to be given under this
paragraph shall be in addition to and not in lieu of any other information
required to be given by the Company pursuant to this Section 13.6 or any other
provision of the Debentures or this Indenture.
SECTION 13.7 TAXES ON CONVERSIONS.
The Company will pay any and all stamp or similar taxes that may
be payable in respect to the issuance or delivery of shares of Common Stock on
conversion of Debentures 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 issuance and delivery of shares of Common Stock in a name other than that
of the Holder of the Debenture or Debentures to be converted, and no such
issuance or delivery shall be made unless and until the Person requesting such
issuance 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 13.8 FRACTIONAL SHARES.
No fractional shares or script representing fractional shares
shall be issued upon the conversion of Debentures. If any such conversion would
otherwise require the issuance of a fractional share, an amount equal to such
fraction multiplied by the Current Market Price per share of Common Stock
(determined as provided in paragraph (f) of Section 13.6 hereof) on the day of
conversion shall be paid to the Holder in cash by the Company.
SECTION 13.9 CANCELLATION OF CONVERTED DEBENTURES.
All Debentures delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 2.11 hereof.
SECTION 13.10 PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR
SALE OF ASSETS.
(a) In case of any consolidation of the Company with, or merger
of the Company into, any other corporation or trust, or in the case of any
merger of another corporation or trust into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), or in the
case of any sale, transfer or other disposition of all or substantially all of
the assets of the Company, the corporation or trust formed by such consolidation
or resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which shall
conform to the TIA at the time of execution) providing that the Holder of each
Debenture then outstanding shall have the right
61
thereafter, during the period such Debenture shall be convertible as specified
in Section 13.1 hereto to convert such Debenture only into the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of
the Company into which such Debenture might have been converted immediately
prior to such consolidation, merger, sale or transfer, assuming such holder of
Common Stock (i) is not a Person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale
or transfer was made, as the case may be (a "Constituent Person"), or an
Affiliate of the Constituent Person and (ii) 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, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 13.10 the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of
non-electing 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 XIII. The above provisions of this
Section 13.10 shall similarly apply to successive consolidations, mergers, sales
or transfers.
(b) The Trustee shall not be under any responsibility to
determine the correctness of any provisions contained in any such supplemental
indenture relating either to the kind or amount of shares of stock or securities
or property receivable by Holders upon the conversion of their Debentures after
any such reclassification, change, consolidation, merger, sale or conveyance or
to any adjustment to be made with respect thereto.
SECTION 13.11 DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR
CERTAIN MATTERS.
The Trustee and each Conversion Agent (other than the Company or
any of its Subsidiaries) shall not at any time be under any duty or
responsibility to any Holder of Debentures 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. The Trustee and each Conversion Agent (other than the Company
or any of its Subsidiaries) shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any
Debenture for the purpose of conversion or, subject to Section 7.1 hereof, to
comply with any of the covenants of the Company contained in this Article XIII.
62
SECTION 13.12 COVENANT TO RESERVE SHARES.
The Company covenants that it will at all times reserve and keep
available, free from preemptive rights, out of its authorized shares of Common
Stock, solely for the purpose of issuance upon conversion of Debentures as
herein provided, such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding Debentures. The Company covenants that
all shares of Common Stock which shall be so issuable shall be, when issued in
accordance with the Debentures and this Indenture, duly and validly issued and
fully paid and nonassessable. For purposes of this Section 13.12, the number of
shares of Common Stock which shall be deliverable upon the conversion of all
outstanding Debentures shall be computed as if at the time of computation all
outstanding Debentures were held by a single holder.
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1 TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 14.2 NOTICES.
Any notices or other communications to the Company or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery by a nationally recognized overnight air courier,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company:
Mercury Air Group, Inc.
0000 XxXxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx, Chief Financial Officer
Telecopy: (000) 000-0000
If to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Assistant Vice President
Telecopy: (000) 000-0000
63
The Company or the Trustee by notice to each other party may
designate additional or different addresses as shall be furnished in writing by
such party. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered, if personally
delivered or delivered by air courier; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and five Business Days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Any notice or communication mailed to a Debentureholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed for the giving of such
notice.
Failure to mail a notice or communication to a Debentureholder or
any defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 14.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate pursuant to TIA Section 312(b)
with other Debentureholders with respect to their rights under this Indenture
or the Debentures. The Company, the Trustee, the Registrar and any other
Person shall have the protection of TIA Section 312(c).
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(b) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
64
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact or mixed matters of law and
fact, an Opinion of Counsel may rely on an Officers' Certificate or certificates
of public officials.
SECTION 14.6 LEGAL HOLIDAYS.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions at such
place are not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 14.7 GOVERNING LAW.
This Indenture and the Debentures shall be governed by and
construed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflicts of law. The Company hereby irrevocably submits to the
jurisdiction of any New York State court sitting in the Borough of Manhattan in
The City of New York or any federal court sitting in the Borough of Manhattan in
The City of New York in respect of any suit, action or proceedings arising out
of or relating to this Indenture and the Debentures, and irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
jurisdiction of the aforesaid courts. The Company irrevocably waives, to the
fullest extent it may effectively do so under applicable law, trial by jury and
any objection which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Nothing herein shall affect the right of the Trustee
or any Debentureholder to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Company in any
other jurisdiction.
SECTION 14.8 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
65
SECTION 14.9 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as
such, of the Company shall not have any liability for any obligations of the
Company under the Debentures or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations. Each
Debentureholder by accepting a Debenture waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Debentures.
SECTION 14.10 SUCCESSORS.
All agreements of the Company in this Indenture and the Debentures
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 14.11 DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 14.12 SEVERABILITY.
In case any one or more of the provisions in this Indenture or in
the Debentures shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 14.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
MERCURY AIR GROUP, INC.
By:________________________________
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
By:________________________________
Title:
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EXHIBIT A
FORM OF DEBENTURE
Unless this certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
MERCURY AIR GROUP, INC.
_____% CONVERTIBLE SUBORDINATED DEBENTURE DUE FEBRUARY __, 2006
No._____________ $________________
CUSIP No. ________
Mercury Air Group, Inc., a New York 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 Cede &
Co., or registered assigns, the principal sum of _______________ Dollars, on
February __, 2006.
Interest Payment Dates: August __ and
February __, commencing
August __, 1996
Record Dates: _____________ and ______________
Reference is made to the further provisions of this Debenture on the
reverse side, which will, 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
Debenture 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:
MERCURY AIR GROUP, INC.
By:________________________________
Attest:
______________________________
Secretary
[Seal]
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned
Indenture.
IBJ XXXXXXXX BANK & TRUST COMPANY
By:________________________________
Authorized Signatory
Dated:
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MERCURY AIR GROUP, INC.
______% CONVERTIBLE SUBORDINATED DEBENTURE DUE FEBRUARY __, 2006
1. INTEREST.
Mercury Air Group, Inc., a New York corporation (the "Company"),
promises to pay interest on the principal amount of this Debenture at a rate of
____% per annum until the principal hereof is paid or made available for
payment. To the extent it is lawful, the Company promises to pay interest on
any interest payment due but unpaid on such principal amount at a rate of ____%
per annum.
The Company will pay interest semi-annually on August __ and
February __ of each year (each, an "Interest Payment Date"), commencing
August __, 1996. Interest on the Debentures will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date of the Debentures. Notwithstanding the foregoing,
Debentures issued pursuant to the Over-Allotment Option shall accrue interest
from the Issue Date of the initial $25,000,000 aggregate principal amount
of Debentures. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Debentures (except
defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest
Payment Date. Holders must surrender Debentures to a Paying Agent to collect
principal payments. Except as provided below, the Company shall pay principal
of, premium, if any, and interest on the Debentures in such coin or currency
of the United States of America as at the time of payment shall be legal
tender for payment of public and private debts ("U.S. Legal Tender"). The
Company shall provide monies sufficient for interest payments in U.S. legal
tender to the Paying Agent who shall remit such payment to the Person in
whose name this Debenture (or one or more predecessor Debentures) is
registered at the close of business on the Record Date for such interest,
which shall be the _________________ or _____________________ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment
Date; such monies shall be paid by wire transfer of federal funds or the
Company's check. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Record Date and
may either (i) be paid to the Person in whose name this Debenture (or one or
more predecessor Debentures) is registered at the close of business on a
Special Record Date for the payment or such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Debentures not less
than 10 days prior to such Special Record Date, or (ii) be paid at any time
in any other lawful manner not inconsistent with the requirement of any
securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange.
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3. REGISTRAR AND AGENTS.
Initially, IBJ Xxxxxxxx Bank & Trust Company (the "Trustee") will
act as Registrar, Paying Agent, Conversion Agent and agent for service of
notice and demands. The Company may change any Registrar, Paying Agent,
Conversion Agent and agent for service of notice and demands without notice
to the Holders. The Company or an Affiliate of the Company may, subject to
certain exceptions, act as Registrar, Paying Agent or Conversion Agent.
4. INDENTURE.
The Company issued the Debentures under an Indenture, dated as of
January __, 1996 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Debentures include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa - 77bbb), as amended
(the "TIA") as in effect on the date of the Indenture. The Debentures are
subject to all such terms, and Holders of Debentures are referred to the
Indenture and the TIA for a statement of them. The Debentures are general
unsecured obligations of the Company limited in aggregate principal amount to
$25,000,000 (up to $28,750,000 if the Over-Allotment Option is exercised in
full).
5. OPTIONAL REDEMPTION.
The Debentures may be redeemed, in whole or in part, at any time on
and after February __, 1999, at the option of the Company, at the Redemption
Price (expressed as a percentage of principal amount) set forth below with
respect to the indicated Redemption Date, in each case, together with any
accrued but unpaid interest to but excluding the Redemption Date.
If redeemed during the period indicated below, the Redemption Price shall be:
REDEMPTION PRICE
----------------
February ..., 1999 - February ..., 2000............................... 104%
February ..., 2000 - February ..., 2001............................... 103%
February ..., 2001 - February ..., 2002............................... 102%
February ..., 2002 - February ..., 2003............................... 101%
and thereafter at 100% of the principal amount thereof. In addition, on or
after February __, 1998 and before February __, 1999, if the price of the
Company's Common Stock shall have been at least 140% of the conversion price
for at least 20 trading days within a period of 30 consecutive trading days
ending not more than five trading days prior to the notice of such
redemption, the Debentures will be redeemable, in whole or in part, at the
Company's option, at a Redemption Price of 105% of the principal amount of
the Debenture, together with any accrued but unpaid interest to and including
the Redemption Date.
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Any such redemption will comply with Article III of the
Indenture. Pursuant to Section 3.3 if less than all of the Debentures are to
be redeemed, the Trustee shall, as it determines in its sole discretion,
redeem either PRO RATA or by lot or in such other manner as complies with any
applicable legal and stock exchange requirements.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Debentures to be redeemed at his registered address. The Debentures may be
redeemed in part in multiples of $1,000 only. Debentures in denominations
larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Debentures called for redemption shall
have been deposited with the Paying Agent on such Redemption Date the Debentures
called for redemption will cease to bear interest and the only right of the
Holders of such Debentures will be to receive payment of the Redemption Price
and any accrued and unpaid interest to but excluding the Redemption Date.
7. TRANSFER AND EXCHANGE.
The Debentures are in global form, without coupons. A Holder
may register the transfer of or exchange of Debentures in accordance with the
Indenture and subject to the restrictions contained therein, including the
restrictions described in Paragraph 21 below. The Registrar or co-Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar or co-Registrar is not required (i) to issue,
register the transfer of or exchange any Debentures during a period beginning 10
Business Days before the mailing of a notice of an offer to repurchase pursuant
to Article XII of the Indenture or redeem Debentures pursuant to Article III of
the Indenture and ending at the close of business on the day of such mailing or
(ii) to register the transfer of or exchange any Debenture selected for
redemption in whole or in part, except the unredeemed portion of Debentures
being redeemed in part. Any attempted transfer of a Debenture or Debentures by
a Holder in violation of the limits set forth above shall be null and void AB
INITIO as to such Holder and such transferee, and such transferee shall not
acquire any rights or economic interest in the Debenture or Debentures
transferred.
8. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the registered Holder of a Debenture as the owner of it for all
purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal of, premium, if any or
interest on the Debentures remains unclaimed for two years, the Trustee and the
Paying Agent(s) will pay the
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money back to the Company at its written request. After that, all liability of
the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company at any time deposits into an irrevocable
defeasance trust with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of, premium, if any, and interest
on the Debentures to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Debentures (excluding its
obligation to pay the principal of, premium, if any, and interest on the
Debentures).
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Debentures may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Debentures then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Debentures then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Debentures to, among other things, cure any ambiguity, defect or inconsistency
(provided such amendment or supplement does not adversely affect the rights of
any Holder of a Debenture).
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and its Subsidiaries to, among other things, merge or consolidate with
any other Person and sell, lease, transfer or otherwise dispose of substantially
all of its properties or assets. The limitations are subject to a number of
important qualifications and exceptions. The Company must make quarterly
reports to the Trustee with respect to its compliance with such limitations.
13. REPURCHASE EVENTS.
In the event there shall occur any Change of Control, each Holder of
Debentures shall have the right, at such Holder's option but subject to the
limitations and conditions set forth in the Indenture, to require the Company to
purchase on the Repurchase Date in the manner specified in the Indenture, all or
any part (in integral multiples of $1,000) of such Holder's Debentures at a
Repurchase Price equal to 100% of the principal amount thereof, together with
accrued and unpaid interest, if any, to and including the Repurchase Date.
Debentures tendered by the authorized representative or surviving
joint tenant, tenant by the entirety or tenant in common of a deceased Holder
will be redeemable, in whole or in part, within 60 days of tender, at 100% of
the principal amount plus accrued interest to and including the date of
redemption, subject to a maximum principal amount of $100,000 per deceased
Holder and a maximum aggregate principal amount for all deceased Holders of
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$500,000 during each calendar-year until maturity.
14. CONVERSION.
A Holder of a Debenture may convert such Debenture into shares of
Common Stock of the Company at any time before the close of business on
February __, 2006. If the Debenture is called for redemption, the Holder may
convert it at any time before the close of business on the last Business Day
prior to the date fixed for such redemption. The initial conversion price is
$_______ per share, subject to adjustment in certain events. To determine the
number of shares issuable upon conversion of a Debenture, divide the
principle amount to be converted by the conversion price in effect on the
conversion date. The Company will deliver a check for any fractional share.
To convert a Debenture, a Holder must (i) complete and sign the
Conversion Notice on the back of the Debenture, (ii) surrender the Debenture to
a Conversion Agent, (iii) furnish appropriate endorsements and transfer
documents if required by the Registrar or Conversion Agent and (iv) pay any
transfer or similar tax if required. No adjustment is to be made on conversion
for interest accrued hereon or for dividends on shares of Common Stock issued on
conversion; PROVIDED, HOWEVER, that if a Debenture (other than a Debenture
called for redemption) is surrendered for conversion after the record date for a
payment of interest and on or before the interest payment date, then,
notwithstanding such conversion, the interest falling due to such interest
payment date will be paid to the Person in whose name the Debenture is
registered at the close of business on such record date and any Debenture
surrendered for conversion during the period from the close of business on any
regular record payment date to the opening of business on the corresponding
interest payment date shall not be required to be accompanied by payment of an
amount equal to the interest payable on such interest payment date. A Holder
may convert a portion of a Debenture if the portion is $1,000 principal amount
or an integral multiple thereof.
If the Company is a party to a consolidation or merger or a
transfer, lease or other disposition of all or substantially all of its assets,
the right to convert a Debenture into shares of Common Stock may be changed into
a right to convert it into securities, cash or other assets of the Company or
another Person.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor
under the Debentures and the Indenture, the predecessor will be released from
those obligations.
16. DEFAULTS AND REMEDIES.
Subject to certain restrictions on the ability to accelerate
contained in the subordination provisions in the Indenture, if an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Debentures then outstanding may declare all the
Debentures to be due and payable immediately in the manner
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and with the effect provided in the Indenture. Holders of Debentures may not
enforce the Indenture or the Debentures except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Debentures. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Debentures then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Debentures notice of any continuing Default or Event of
Default (except a Default in payment of principal of, premium, if any, or
interest on the Debentures, including a Default at any Maturity Date), if it
determines that withholding notice is in their interest.
17. NO RECOURSE AGAINST OTHERS.
No stockholder, director, officer, employee or incorporator, as
such, past, present or future, of the Company or any successor corporation shall
have any liability for any obligation of the Company under the Debentures or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Debenture by accepting a
Debenture waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Debentures.
18. SUBORDINATION.
The Indebtedness evidence by this Debenture is subordinate to all
Senior Indebtedness of the Company. To the extent and in the manner provided in
the Indenture, Senior Indebtedness must be paid before any payment may be made
to any Holders of Debentures. In addition, under certain circumstances, upon
the occurrence of an Event of Default, the Trustee and the Holders of the
Debentures may be prohibited from accelerating the obligations of the Company
under the Debentures and the Indenture. Each Holder of this Debenture, by
accepting the same (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee as his attorney-in-fact for any and all such purposes.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefit of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
19. AUTHENTICATION.
This Debenture shall not be valid until the Trustee or an
authenticating agent acceptable to the Company signs the certificate of
authentication contained in this Debenture.
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20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a
Debenture or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act). Additional abbreviations may also be used though not in the
above list. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Indenture.
21. GLOBAL SECURITY.
This Debenture is a global Debenture and shall be exchangeable, in
whole but not in part, for Debentures registered in the names of Persons other
than the Depository with respect to this global Debenture or its nominee only if
(i) the Depository is at any time unwilling, unable or ineligible to continue as
Depository and a successor Depository is not appointed by the Company within 60
days of the date the Company is so informed in writing, (ii) the Company
executes and delivers to the Trustee a Company Order to the effect that this
global Debenture shall be so exchangeable, or (iii) an Event of Default or an
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default has occurred and is continuing with respect to
the Debentures. If this global Debenture is exchangeable pursuant to the
preceding sentence it shall be exchangeable for Debentures issuable in
denominations of $1,000 and any integral multiple thereof, registered in such
names as such Depository shall direct.
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FORM OF ASSIGNMENT
I or we assign this Debenture to
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee: _________________________________
and irrevocably appoint _____________ agent to transfer this Debenture on the
books of the Company. The agent may substitute another to act for him.
Dated:__________________ Signed: x __________________________________
x __________________________________
x __________________________________
NOTICE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS WRITTEN UPON THE FACE OF
THE CERTIFICATE, IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
Signatures guaranteed: x ____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE, IF IT IS LOST, STOLEN OR DESTROYED,
THE CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE
ISSUANCE OF A REPLACEMENT CERTIFICATE.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Company
pursuant to Article XII of the Indenture, check the box: / /
If you want to elect to have only part of this Debenture purchased
by the Company pursuant to Article XII of the Indenture, state the amount you
want to be purchased (which must be a minimum of $1,000 or any multiple
thereof): $________________.
If this Option of Holder to Elect Purchase is being elected by an
authorized representative of a deceased Holder pursuant to Section 12.2 of the
Indenture, you must provide the Company or the Trustee with the information
required to be so provided pursuant to such section of the Indenture.
Dated:__________________ Signed: x __________________________________
x __________________________________
x __________________________________
NOTICE: THE SIGNATURE(S) TO THIS
OPTION OF HOLDER TO ELECT PURCHASE
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATSOEVER.
Signatures guaranteed: x ____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
CONVERSION NOTICE
To convert this Debenture into shares of common stock, par value
$.01 per share, of the Company, check the box: / /
To convert only part of this Debenture, state the principal amount
you want to be converted (which must be a minimum of $1,000 or any multiple
thereof): $________________
If you want the certificate made out in another person's name, fill
in the form below:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type other person's name, address and zip code)
Dated:__________________ Signed: x __________________________________
x __________________________________
x __________________________________
NOTICE: THE SIGNATURE(S) TO THIS
CONVERSION NOTICE MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE, IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE
WHATSOEVER.
Signatures guaranteed: x ____________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
