EXHIBIT 4.2
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RAC FINANCIAL GROUP, INC.
Issuer
AND
BANK ONE, COLUMBUS, N.A.
Trustee
INDENTURE
Dated as of August 20, 1996
7.25% Convertible Subordinated Notes Due 2003
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INDENTURE, dated as of August 20, 1996, by and between RAC FINANCIAL
GROUP, INC., a Nevada corporation (the "Company"), and BANK ONE, COLUMBUS, N.A.,
a national banking association (the "Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance of its 7.25% Convertible Subordinated Notes Due 2003
(the "Notes"), in an aggregate principal amount not to exceed $115,000,000, and,
to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to require repurchase by the
Company upon a Change of Control (as hereinafter defined), a form of conversion
notice and a certificate of transfer to be borne by the Notes are to be
substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issuance hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below) as follows:
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ARTICLE I.
DEFINITIONS
Section 1. DEFINITIONS. The terms defined in this Section 1.1
(except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section 1.1. The words "herein," "hereof," "hereunder" and words of similar
import refer to this Indenture as a whole and not to any particular Article
or Section.
ACCREDITED INVESTOR: The term "Accredited Investor" shall have the
meaning specified in Rule 501(a) under the Securities Act.
ACQUISITION PRICE: The term "Acquisition Price" shall mean the
weighted average price paid by the person or group in acquiring the Voting
Stock.
AFFILIATE: An "Affiliate" of any specified person shall mean an
"affiliate" as defined in Rule 144(a) as promulgated under the Securities Act.
BOARD OF DIRECTORS: The term "Board of Directors" shall mean the
Board of Directors of the Company or a committee of such Board of Directors duly
authorized to act for it hereunder.
BOARD RESOLUTION: The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
BUSINESS DAY: The term "Business Day" shall mean a day, other than a
Saturday, a Sunday or a day on which the banking institutions in the State and
City of New York are authorized or obligated by law or executive order to close
or a day that is declared a national or New York state holiday.
CAPITAL STOCK: The term "Capital Stock" of any person shall mean any
and all shares, interests, participations or other equivalents (however
designated) of such person's corporate stock or any and all equivalent ownership
interests in a person (other than a corporation) whether now outstanding or
issued after the date hereof.
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CEDEL: The term "Cedel" shall mean Cedel Bank societe anonyme.
CHANGE OF CONTROL: The term "Change of Control" shall have the
meaning specified in Section 3.5(d).
CLOSING DATE: The term "Closing Date" shall mean August 20, 1996.
COMMISSION: The term "Commission" shall mean the Securities and
Exchange Commission, as from time to time constituted, created under the
Exchange Act or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, the body performing such duties at such time.
COMMON STOCK: The term "Common Stock" shall mean any stock of any
class of the Company that does not have a preference in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and that is not subject to redemption
by the Company. Subject to the provisions of Section 14.6, however, shares
issuable on conversion of Notes shall include only shares of the class
designated as common stock of the Company at the date of this Indenture or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and that do not have a preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that are not subject
to redemption by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion that the total number of shares of such
class resulting from all such reclassification bears to the total number of
shares of all such classes resulting from all such reclassifications.
COMPANY: The term "Company" shall mean RAC Financial Group, Inc., a
Nevada corporation, and subject to the provisions of Article XI, shall include
its successors and assigns.
CONVERSION PRICE: The term "Conversion Price" shall have the meaning
specified in Section 14.4.
CORPORATE TRUST OFFICE OF THE TRUSTEE: The term "Corporate Trust
Office of the Trustee," or other similar term, shall mean the office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which office is, at the date as of which this
Indenture is
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dated, located at 000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Trust Administration.
CREDIT FACILITIES: The term "Credit Facilities" means, collectively,
(i) that certain credit agreement dated March 17, 1995 among FirstPlus
Financial, Inc. (formerly known as Remodelers National Funding Corp., "FPF"),
the Company and Bank One, Texas, N.A., (ii) that certain Amended and Restated
Warehousing Credit, Term Loan and Security Agreement dated February 1, 1996
among Residential Funding Corporation, the Company and FPF, (iii) that certain
Senior Subordinated Note and Warrant Purchase Agreement, dated as of March 31,
1995, amended and restated as of July 16, 1995 and September 27, 1996, among the
Company, FPF, SFA: State Financial Acceptance Corporation, Banc One Capital
Partners II, Limited Partnership and Farm Bureau Life Insurance Company, and
(iv) that certain Mortgage Warehouse Loan and Security Agreement between FSMC
and Leader Federal Bank for Savings, dated June 1, 1995, as amended, in each
case including any related notes, guaranties, collateral documents, instruments
and agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced, restated or refined from time to time.
CUSTODIAN: The term "Custodian" shall mean Bank One, Columbus, N.A.,
as custodian with respect to the Notes in global form, or any successor entity
thereto.
DEFAULT: The term "default" shall mean any event that is, or after
notice or passage of time, or both, would be, an Event of Default.
DEFINITIVE NOTES; IN DEFINITIVE FORM: The term "definitive Notes"
shall have the meaning specified in Section 2.2, any reference to Notes "in
definitive form" shall mean definitive Notes, and any reference to securities
"in definitive form" shall mean definitive Notes or Common Stock as the context
requires.
DEPOSITARY: The term "Depositary" shall mean, with respect to the
Notes issuable or issued in whole or in part in global form, the person
specified in Section 2.5(d) as the Depositary with respect to the Notes, until a
successor shall have been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
DWAC: The term "DWAC" shall mean Deposit and Withdrawal at Custodian
Service.
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EUROCLEAR: The term "Euroclear" shall mean Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System.
EVENT OF DEFAULT: The term "Event of Default" shall mean any event
specified in Section 6.1(a) through (g).
EXCHANGE ACT: The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
GLOBAL NOTE: The term "global Note" shall mean any and all notes in
global form.
INDENTURE: The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented.
NOTE OR NOTES: The terms "Note" or "Notes" shall mean any Note or
Notes, as the case may be, authenticated and delivered under this Indenture.
NOTEHOLDER; HOLDER: The terms "Noteholder" or "holder" as applied to
any Note, or other similar terms (but excluding the term "beneficial holder"),
shall mean any person in whose name at the time a particular Note is registered
on the Note registrar's books.
NOTE REGISTER: The term "Note register" shall have the meaning
specified in Section 2.5(a).
OFFICERS' CERTIFICATE: The term "Officers' Certificate," when used
with respect to the Company, shall mean a certificate signed by the President,
the Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer and any Treasurer or Secretary or any Assistant Secretary of the
Company, that is delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 16.7 if and to the extent required by the
provisions of such Section.
OPINION OF COUNSEL: The term "Opinion of Counsel" shall mean an
opinion in writing signed by legal counsel, who may be an employee of or counsel
to the Company or other counsel acceptable to the Trustee, that is delivered to
the Trustee. Each such opinion shall include the statements provided for in
Section 16.7 if and to the extent required by the provisions of such Section.
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OUTSTANDING: The term "outstanding" with reference to Notes as of any
particular time shall mean, subject to the provisions of Section 8.4, all Notes
authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Notes, or portions thereof, for which monies in the
necessary amount shall have been deposited in trust with the
Trustee for payment or redemption; provided that if such Notes are
to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given pursuant to Article III or
provision satisfactory to the Trustee shall have been made for
giving such notice;
(c) Notes paid pursuant to Section 2.6 hereof or Notes
in lieu of or in substitution for which other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.6
unless proof satisfactory to the Trustee is presented that any such
Notes are held by BONA FIDE holders in due course; and
(d) Notes converted into Common Stock pursuant to
Article XIV and Notes not deemed outstanding pursuant to
Section 3.2.
PERSON: The term "person" shall mean a corporation, an association, a
partnership, an individual, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political
subdivision thereof.
PORTAL MARKET: The term "PORTAL Market" shall mean the Private
Offerings, Resales and Trading through Automated Linkages Market operated by the
National Association of Securities Dealers, Inc. or any successor thereto.
PREDECESSOR NOTE: The term "Predecessor Note" of any particular Note
shall mean every previous Note evidencing all or a portion of the same debt as
that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.6 in lieu of a
lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
lost, destroyed or stolen Note.
QIB: The term "QIB" shall mean a "qualified institutional buyer" as
defined in Rule 144A.
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REGULATION S: The term "Regulation S" shall mean Regulation S under
the Securities Act and any successor regulation thereto.
REGULATION S GLOBAL NOTE: The term "Regulation S Global Note" shall
have the meaning specified in Section 2.2.
RESPONSIBLE OFFICER: The term "Responsible Officer" with respect to
the Trustee, shall mean an officer of the Trustee assigned and duly authorized
by the Trustee to administer its corporate trust matters.
RESTRICTED GLOBAL NOTE: The term "Restricted Global Note" shall have
the meaning specified in Section 2.2.
RESTRICTED PERIOD: The term "Restricted Period" shall have the
meaning specified in Section 2.2.
RESTRICTED SECURITIES: The term "Restricted Securities" shall have
the meaning specified in Section 2.5(d).
RULE 144A: The term "Rule 144A" shall mean Rule 144A as promulgated
under the Securities Act.
SECURITIES ACT: The term "Securities Act" shall mean the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
SENIOR INDEBTEDNESS: The term "Senior Indebtedness" shall have the
meaning specified in Section 15.2(2).
SUBSIDIARY: The term "subsidiary" of any specified person shall mean
(i) a corporation a majority of whose capital stock with voting power under
ordinary circumstances to elect directors is at the time directly or indirectly
owned by such person or (ii) any other person (other than a corporation) in
which such person or such person and a subsidiary or subsidiaries of such person
or a subsidiary or subsidiaries of such person directly or indirectly, at the
date of determination thereof, has at least majority ownership.
SUCCESSOR COMPANY: The term "Successor Company" shall have the
meaning specified in Section 11.1.
TRUST INDENTURE ACT: The term "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939, as amended, as it was in force at the date of
execution of this Indenture, except as provided in Sections 10.3 and 14.6;
provided that in the event said Trust Indenture Act of 1939 is amended after the
date
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hereof, the term "Trust Indenture Act" shall mean, to the extent required
by such amendment, said Trust Indenture Act of 1939 as so amended.
TRUSTEE: The term "Trustee" shall mean Bank One, Columbus, N.A., its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
U.S. GOVERNMENT OBLIGATIONS: The term "U.S. Government Obligations"
shall mean securities that are (i) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by, and acting as an agency or
instrumentality of, the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by such custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
VOTING STOCK: The term "Voting Stock" of any person shall mean stock
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such person (irrespective of whether
or not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
The definitions of certain other terms are as specified in Sections
2.3, 2.5, 3.5, 12.1, 14.5, 14.6, 15.2 and 15.4.
Section 2. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
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Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture.
The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of Notes;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company and any successor obligor
upon the Trust Indenture Act.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
Section 3. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 1. DESIGNATION, AMOUNT AND ISSUE OF NOTES. The Notes shall
be designated as "7.25% Convertible Subordinated
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Notes Due 2003." Notes not to exceed the aggregate principal amount of
$115,000,000 upon the execution of this Indenture, or from time to time
thereafter, may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make
available for delivery said Notes upon the written order of the Company,
signed by its (a) Chief Executive Officer, President, Chief Operating Officer
or Chief Financial Officer, and (b) any Treasurer or Secretary or any
Assistant Secretary, without any further action by the Company hereunder.
Section 2. FORM OF NOTES. The Notes in definitive form
("definitive Notes") shall be substantially in the form of Exhibit A hereto,
with the legends in substantially the form indicated in Exhibit A hereto and
such other legends as may be applicable thereto, which definitive Notes shall
be registered in the name of the holders thereof, duly executed by the
Company and authenticated by the Trustee or the authenticating agent as
provided herein.
Unless issued in definitive form, Notes initially offered and sold in
reliance on Rule 144A shall be issued in the form of one or more permanent
global Notes (the "Restricted Global Note"), substantially in the form of
Exhibit B hereto, with the legends in substantially the form set forth in
Exhibit B hereto and such other legends as may be applicable thereto, which
Restricted Global Note shall be deposited on behalf of the holders of the Notes
represented thereby with the Trustee, as custodian for the Depositary, and
registered in the name of a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee or the authenticating agent as provided
herein.
Notes offered and sold outside the United States in reliance on
Regulation S may be evidenced in the form of one or more permanent global Notes
(the "Regulation S Global Note"), substantially in the form of Exhibit C hereto,
with the legends in substantially the form set forth in Exhibit C hereto and
such other legends as may be applicable thereto, which Regulation S Global Note
shall be deposited on behalf of the holders of the Notes represented thereby
with the Trustee, as custodian for the Depositary, and registered in the name of
a nominee of the Depositary, duly executed by the Company and authenticated by
the Trustee or an authenticating agent as provided herein, for credit to the
accounts of the respective depositaries for Euroclear and Cedel (or such other
accounts as they may direct). Prior to or on the 40th day after the later of
the commencement of the offering of the Notes and the Closing Date (the
"Restricted Period"), beneficial interests in the Regulation S Global Note
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may only be held through Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of Euroclear or Cedel or another agent member of
Euroclear and Cedel acting for and on behalf of them, unless delivery is made
through the Restricted Global Note in accordance with the certification
requirements hereof. During the Restricted Period, interests in the
Regulation S Global Note may be exchanged for interests in the Restricted
Global Note or for definitive Notes only in accordance with the certification
requirements described in Section 2.5 below.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Notes may be listed, or to conform to usage.
Any global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect transfers or exchanges permitted hereby. Any
endorsement of a global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in such manner and
upon instructions given by the holder of such Notes in accordance with the
Indenture. Payment of principal of and interest and premium, if any, on any
global Note shall be made to the holder of such Note.
The terms and provisions contained in the forms of Notes attached as
Exhibits A, B and C hereto 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.
Section 3. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof.
Every Note shall be dated the date of its authentication, shall bear interest
from the date of original issue and shall be payable semiannually on February
15 and August
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15, commencing February 15, 1997, as specified on the faces of
the forms of Notes, attached as Exhibits A, B and C hereto.
The person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date (including any Note that is converted after the record
date and on or before the interest payment date) shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer, exchange or conversion
subsequent to the record date and prior to such interest payment date.
Interest may, at the option of the Company, be paid by check mailed to the
address of such person as it appears on the Note register; provided that,
with respect to any holder of Notes with an aggregate principal amount equal
to or in excess of $5,000,000, at the request (such request to include
appropriate wire instructions) of such holder in writing to the Trustee on or
before the record date preceding any interest payment date, interest on such
holder's Notes shall be paid by wire transfer in immediately available funds
(the cost of such wire transfer to be borne by the Company). The term
"record date" with respect to any interest payment date shall mean the
February 1st or August 1st preceding said February 15th or August 15th.
Interest on the Notes shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
Any interest on any Note that is payable, but is not punctually paid
or duly provided for, on any said February 15 or August 15 (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Noteholder on
the relevant record date by virtue of his having been such Noteholder; and such
Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest to be paid on each Note and the date of the
payment (which shall be not less than 25 days after the receipt by
the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time, the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such
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deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a special record date for the
payment of such Defaulted Interest, which shall be not more than 15
days and not less than 10 days prior to the date of the payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the payment of such
Defaulted Interest and the special record date therefor to be
mailed, first-class postage prepaid, to each Noteholder at his
address as it appears in the Note register, not less than 10 days
prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the
persons in whose names the Notes (or their respective Predecessor
Notes) were registered at the close of business on such special
record date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Section 4. EXECUTION OF NOTES. The Notes shall be signed in the
name and on behalf of the Company by the signature of its Chief Executive
Officer, President, Chief Operating Officer or Chief Financial Officer and
attested by the signature of its Treasurer, Secretary or any of its Assistant
Secretaries (any of which signatures may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Notes as shall
bear thereon a certificate of authentication substantially in the form set
forth on forms of Notes attached as Exhibits A, B and C hereto, manually
executed by the Trustee (or an authenticating agent appointed by the Trustee
as provided by Section 16.14), shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by the
Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered
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hereunder and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Section 5. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES;
RESTRICTIONS ON TRANSFER; DEPOSITARY.
(a) 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 of the Company designated pursuant to Section
4.2 being herein sometimes collectively referred to as the "Note register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Notes and of transfers of
Notes. Such Note register shall be in written form or in any form capable of
being converted into written form within a reasonable period of time. The
Trustee is hereby appointed "Note registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. The Company may appoint one
or more co-registrars.
Upon surrender for registration of transfer of any Note to the Note
registrar or any co-registrar and satisfaction of the requirements for such
transfer set forth in this Section 2.5, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by Section 2.5(d).
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency. Whenever any Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Notes that the Noteholder making the exchange
is entitled to receive.
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All Notes presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee,
the Note registrar or any co-registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company,
executed by the Noteholder thereof or his attorney duly authorized in writing.
No service charge shall be charged to the Noteholder for any
exchange or registration of transfer of Notes, but the Company may require
payment of a sum sufficient to cover any tax, assessments or other
governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Note registrar or any
co-registrar shall be required to exchange or register a transfer of (a) any
Notes for a period of 15 days next preceding the mailing of a notice of
redemption, (b) any Notes called for redemption or, if a portion of any Note
is selected or called for redemption, such portion thereof selected or called
for redemption, (c) any Notes surrendered for conversion or, if a portion of
any Note is surrendered for conversion, such portion thereof surrendered for
conversion or (d) any Notes surrendered for redemption pursuant to Section
3.5 or, if a portion of any Note is surrendered for redemption pursuant to
Section 3.5, such portion thereof surrendered for redemption pursuant to
Section 3.5.
All Notes issued upon any transfer or exchange of Notes shall be
the valid obligations of the Company, evidencing the same debt and entitled
to the same benefits under this Indenture as the Notes surrendered upon such
registration of transfer or exchange.
(b) So long as the Notes are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, all Notes to be
traded on the PORTAL Market shall be represented by the Restricted Global
Note registered in the name of the Depositary or the nominee of the
Depositary. The transfer and exchange of beneficial interests in any global
Note that does not involve the issuance of a definitive Note or the transfer
of interests to another global Note shall be effected through the Depositary
(but not the Trustee or the Custodian) in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures
of the Depositary therefor. Neither the Trustee nor the Custodian (in such
respective capacities) shall have any responsibility for the transfer and
exchange of beneficial interests in such global Note that does not involve
the issuance of a definitive Note or the transfer of interests to another
global Note.
-15-
At any time at the request of the beneficial holder of an interest
in a global Note, such beneficial holder shall be entitled to obtain a
definitive Note upon written request to the Trustee and the Custodian in
accordance with the standing instructions and procedures existing between the
Depositary and the Custodian for the issuance thereof. Upon receipt of any
such request, the Trustee or the Custodian, at the direction of the Trustee,
shall cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Custodian, the aggregate principal
amount of the global Note to be reduced and, following such reduction, the
Company shall execute and the Trustee shall authenticate and make available
for delivery to such beneficial holder (or its nominee) a Note or Notes in
the appropriate aggregate principal amount in the name of such beneficial
holder (or its nominee) and bearing such restrictive legends as may be
required by this Indenture.
Any transfer of a beneficial interest in a global Note that cannot
be effected through book-entry settlement must be effected by the delivery to
the transferee (or its nominee) of a definitive Note or Notes registered in
the name of the transferee (or its nominee) on the books maintained by the
Trustee. With respect to any such transfer, the Trustee or the Custodian, at
the direction of the Trustee, shall cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Custodian, the aggregate principal amount of the global Note to be reduced
and, following such reduction, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the transferee (or such
transferee's nominee, as the case may be), a definitive Note or Notes in the
appropriate aggregate principal amount in the name of such transferee (or its
nominee) and bearing such restrictive legends as may be required by this
Indenture. As a condition to such transfer, if such transfer is made to an
Accredited Investor, the Trustee or the Custodian, at the direction of the
Trustee, shall request such representations and agreements relating to the
restrictions on transfer of such Note or Notes from such transferee (or such
transferee's nominee) substantially in the form as set forth in Exhibit D
hereto and as the Trustee (or the Custodian) may otherwise reasonably require.
Any transfer of a definitive Note or Notes must be effected by the
delivery to the transferee (or its nominee) of a definitive Note or Notes
registered in the name of the transferee (or its nominee) on the books
maintained by the Trustee. With respect to any such transfer, the Company
shall execute and the Trustee shall authenticate and make available for
delivery to the transferee (or such transferee's nominee, as the case may
be), a definitive Note or Notes in the appropriate aggregate principal
-16-
amount in the name of such transferee (or its nominee) and bearing such
restrictive legends as may be required by this Indenture. As a condition to
such transfer, if such transfer is made to an Accredited Investor, the
Trustee or the Custodian, at the direction of the Trustee, shall request such
representations and agreements relating to the restrictions on transfer of
such Note or Notes from such transferee (or such transferee's nominee)
substantially in the form as set forth in Exhibit D hereto and as the Trustee
(or the Custodian) shall otherwise reasonably require.
(c) So long as the Notes are eligible for book-entry settlement,
or unless otherwise required by law, upon any transfer of a definitive Note
to a QIB in accordance with Rule 144A, unless otherwise requested by the
transferor, and upon receipt of the definitive Note or Notes being so
transferred, together with a certificate in the form of Exhibit E hereto from
the transferor that the transferor reasonably believes the transferee is a
QIB and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state of
the United States or any other jurisdiction (or other evidence satisfactory
to the Trustee), the Trustee shall cancel such definitive Note or Notes and
cause, or direct the Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Custodian, the aggregate principal amount of Notes represented by the
Restricted Global Note to be increased accordingly.
So long as the Notes are eligible for book-entry settlement, or
unless otherwise required by law, upon any transfer of a definitive Note in
accordance with Regulation S, if requested by the transferor, and upon
receipt of the definitive Note or Notes being so transferred, together with a
certificate in the form of Exhibit F hereto from the transferor that the
transfer was made in accordance with Rule 903 or 904 of Regulation S under
the Securities Act (or other evidence satisfactory to the Trustee), the
Trustee shall cancel such definitive Note or Notes and cause, or direct the
Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Custodian, the aggregate
principal amount of Notes represented by the Regulation S Global Note to be
increased accordingly.
If a holder of a beneficial interest in the Restricted Global Note
wishes at any time to exchange its interest in the Restricted Global Note for an
interest in the Regulation S Global Note, or to transfer its interest in the
Restricted Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Regulation S Global Note, such holder may,
-17-
subject to the rules and procedures of the Depositary and to the requirements
set forth in the following sentence, exchange or cause the exchange or
transfer or cause the transfer of such interest for an equivalent beneficial
interest in the Regulation S Global Note. Upon receipt by the Trustee, as
transfer agent, of (1) instructions given in accordance with the Depositary's
procedures from or on behalf of a holder of a beneficial interest in the
Restricted Global Note, directing the Trustee (via DWAC), as transfer agent,
to credit or cause to be credited a beneficial interest in the Regulation S
Global Note in an amount equal to the beneficial interest in the Restricted
Global Note to be exchanged or transferred, (2) a written order given in
accordance with the Depositary's procedures containing information regarding
the Euroclear or Cedel account to be credited with such increase and the name
of such account, and (3) a certificate in the form of Exhibit G given by the
holder of such beneficial interest stating that the exchange or transfer of
such interest has been made pursuant to and in accordance with Rule 903 or
Rule 904 of Regulation S under the Securities Act (or other evidence
satisfactory to the Trustee), the Trustee, as transfer agent, shall promptly
deliver appropriate instructions to the Depositary (via DWAC), its nominee,
or the custodian for the Depositary, as the case may be, to reduce or reflect
on its records a reduction of the Restricted Global Note by the aggregate
principal amount of the beneficial interest in such Restricted Global Note to
be so exchanged or transferred from the relevant participant, and the
Trustee, as transfer agent, shall promptly deliver appropriate instructions
(via DWAC) to the Depositary, its nominee, or the custodian for the
Depositary, as the case may be, concurrently with such reduction, to increase
or reflect on its records an increase of the principal amount of such
Regulation S Global Note by the aggregate principal amount of the beneficial
interest in such Restricted Global Note to be so exchanged or transferred,
and to credit or cause to be credited to the account of the person specified
in such instructions (who shall be Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of Euroclear or Cedel or another agent member of
Euroclear or Cedel, or both, as the case may be, acting for and on behalf of
them) a beneficial interest in such Regulation S Global Note equal to the
reduction in the principal amount of such Restricted Global Note.
If a holder of a beneficial interest in the Regulation S Global Note
wishes at any time to exchange its interest in the Regulation S Global Note for
an interest in the Restricted Global Note, or to transfer its interest in the
Regulation S Global Note to a person who wishes to take delivery thereof in the
form of an interest in the Restricted Global Note, such holder may, subject to
the rules and procedures of Euroclear or Cedel and the Depositary,
-18-
as the case may be, and to the requirements set forth in the following
sentence, exchange or cause the exchange or transfer or cause the transfer of
such interest for an equivalent beneficial interest in such Restricted Global
Note. Upon receipt by the Trustee, as transfer agent, of (l) instructions
given in accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, from or on behalf of a beneficial owner of an
interest in the Regulation S Global Note directing the Trustee, as transfer
agent, to credit or cause to be credited a beneficial interest in the
Restricted Global Note in an amount equal to the beneficial interest in the
Regulation S Global Note to be exchanged or transferred, (2) a written order
given in accordance with the procedures of Euroclear or Cedel and the
Depositary, as the case may be, containing information regarding the account
with the Depositary to be credited with such increase and the name of such
account, and (3) prior to the expiration of the Restricted Period, a
certificate in the form of Exhibit H given by the holder of such beneficial
interest and stating that the person transferring such interest in such
Regulation S Global Note reasonably believes that the person acquiring such
interest in the Restricted Global Note is a QIB and is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
and any applicable securities laws of any state of the United States or any
other jurisdiction (or other evidence satisfactory to the Trustee), the
Trustee, as transfer agent, shall promptly deliver (via DWAC) appropriate
instructions to the Depositary, its nominee, or the custodian for the
Depositary, as the case may be, to reduce or reflect on its records a
reduction of the Regulation S Global Note by the aggregate principal amount
of the beneficial interest in such Regulation S Global Note to be exchanged
or transferred, and the Trustee, as transfer agent, shall promptly deliver
(via DWAC) appropriate instructions to the Depositary, its nominee, or the
custodian for the Depositary, as the case may be, concurrently with such
reduction, to increase or reflect on its records an increase of the principal
amount of the Restricted Global Note by the aggregate principal amount of the
beneficial interest in the Regulation S Global Note to be so exchanged or
transferred, and to credit or cause to be credited to the account of the
person specified in such instructions a beneficial interest in the Restricted
Global Note equal to the reduction in the principal amount of the Regulation
S Global Note. After the expiration of the Restricted Period, the
certification requirement set forth in clause (3) of the second sentence of
this paragraph shall no longer apply to such exchanges and transfers.
If a holder of a definitive Note wishes at any time to exchange its
Note for a beneficial interest in any global Note (or vice versa), or to
transfer its definitive Note to a person
-19-
who wishes to take delivery thereof in the form of a beneficial interest in a
global Note (or vice versa), such Notes and beneficial interests may be
exchanged or transferred for one another only in accordance with such
procedures as are substantially consistent with the provisions of the two
preceding paragraphs (including the certification requirements intended to
ensure that such exchanges or transfers comply with Rule 144, Rule 144A or
Regulation S, as the case may be) and as may be from time to time adopted by
the Company and the Trustee.
Any beneficial interest in one of the global Notes that is
transferred to a person who takes delivery in the form of an interest in the
other global Note shall, upon transfer, cease to be an interest in such
global Note and become an interest in the other global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other global Note for as long as
it remains such an interest.
Any global Note may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian, the
Depositary or by the National Association of Securities Dealers, Inc. in
order for the Notes to be tradeable on the PORTAL Market or as may be
required for the Notes to be tradeable on any market developed for trading of
securities pursuant to Rule 144A or required to comply with any applicable
law or any regulation thereunder or with Regulation S or with the rules and
regulations of any securities exchange upon which the Notes may be listed or
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes are subject.
(d) Every Note that bears or is required under this Section 2.5(d)
to bear the legend set forth in this Section 2.5(d) (together with any Common
Stock issued upon conversion of the Notes and required to bear the legend set
forth in Section 2.5(e), collectively, the "Restricted Securities") shall be
subject to the restrictions on transfer set forth in this Section 2.5(d),
unless such restrictions on transfer shall have been waived by the written
consent of the Company or removed in accordance with the provisions of
Section 2.5(f), and the holder of each such Restricted Security, by such
holder's acceptance thereof, agrees to be bound by such restrictions on
transfer. As used in this Section 2.5(d), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Restricted Security.
-20-
Until three years after the later of the original issuance date of
any Note and the last date on which the Company or an Affiliate of the
Company was the owner of such Note, any certificate evidencing such Note (and
all securities issued in exchange therefor or substitution thereof, other
than Common Stock, if any, issued upon conversion thereof, which shall bear
the legend set forth in Section 2.5(e), if applicable) shall bear a legend in
substantially the following form, unless otherwise agreed by the Company
(with notice thereof to the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES
THAT IT WILL NOT PRIOR TO THE DATE THAT IS THREE YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON
WHICH RAC FINANCIAL GROUP, INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER
OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO BANK ONE, COLUMBUS, N.A., AS
TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE
RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE
-21-
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO BANK ONE, COLUMBUS, N.A., AS TRUSTEE. IF THE
PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO BANK ONE, COLUMBUS, N.A., AS
TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED UPON THE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any Note (or security issued in exchange or substitution therefor)
as to which such restrictions on transfer shall have expired in accordance
with their terms may, upon satisfaction of the requirements of Section 2.5(f)
and surrender of such Note for exchange to the Note registrar in accordance
with the provisions of this Section 2.5, be exchanged for a new Note or
Notes, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.5(d).
Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in this Section 2.5(d)), a global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the global Notes. Initially, the global
Notes shall be issued to the Depositary, registered in the name of Cede &
Co., as the nominee of the Depositary, and deposited with the Trustee as
Custodian for Cede & Co.
If at any time the Depositary for the global Notes notifies the
Company that it is unwilling or unable to continue as Depositary for such Notes,
the Company may appoint a successor Depositary with respect to such Notes. If a
successor Depositary for the Notes is not appointed by the Company within 90
days after the Company receives such notice, the Company shall execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of Notes, shall authenticate
-22-
and make available for delivery, Notes in definitive form, in an aggregate
principal amount equal to the principal amount of the global Notes in
exchange for such global Notes.
Definitive Notes issued in exchange for all or a part of a global
Note pursuant to this Section 2.5(d) shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall make available
for delivery such definitive Notes to the persons in whose names such
definitive Notes are so registered.
At such time as all interests in global Notes have been redeemed,
converted, repurchased or canceled, such global Notes shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a global Note is exchanged for
definitive Notes, redeemed, converted, canceled or transferred to a
transferee who receives definitive Notes therefor or any definitive Note is
exchanged or transferred for part of a global Note, the principal amount of
such global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be reduced or
increased, as the case may be, and an endorsement shall be made on such
global Note by the Trustee or the Custodian, at the direction of the Trustee,
to reflect such reduction or increase.
The Company and the Trustee may for all purposes, including the
making of payments due on the Notes, deal with the Depositary as the
authorized representative of the Noteholders for the purposes of exercising
the rights of Noteholders hereunder. The rights of the owner of any
beneficial interest in a global Note shall be limited to those established by
law and agreements between such owners and depository participants or
Euroclear and Cedel; provided that no such agreement shall give any rights to
any person against the Company or the Trustee without the written consent of
the parties so affected. Multiple requests and directions from and votes of,
the Depositary as holder of notes in book entry form with respect to any
particular matter shall not be deemed inconsistent to the extent they do not
represent an amount of notes in excess of those held in the name of the
Depositary or its nominee.
(e) Until three years after the later of the original issuance
date of any Note (other than any Note represented by the Regulation S Global
Note) and the last date on which the Company or an Affiliate of the Company
was the owner of such Note, any
-23-
stock certificate representing Common Stock issued upon conversion of such
Note shall bear a legend in substantially the following form, unless
otherwise agreed by the Company (with written notice thereof to the Trustee
and any transfer agent for the Common Stock):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT PRIOR TO THE DATE
THAT IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE
UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED
AND THE LAST DATE ON WHICH RAC FINANCIAL GROUP, INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 OF THE SECURITIES ACT) OF THE COMPANY
WAS THE OWNER OF THE NOTE UPON THE CONVERSION OF WHICH THE COMMON STOCK
EVIDENCED HEREBY WAS ISSUED OR THE COMMON STOCK EVIDENCED HEREBY (THE
"RESTRICTION TERMINATION DATE"), (1) IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) THAT PRIOR TO SUCH TRANSFER, FURNISHES TO
KEYCORP SHAREHOLDER SERVICES, INC., AS TRANSFER AGENT, A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (2) PRIOR TO
ANY SUCH TRANSFER PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, IT WILL FURNISH
TO KEYCORP SHAREHOLDER SERVICES, INC., AS TRANSFER AGENT, SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON
TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S.
-24-
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Any such Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms may, upon satisfaction of
the requirements of Section 2.5(f) and surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a like aggregate number of shares of Common
Stock, which shall not bear the restrictive legend required by this Section
2.5(e).
(f) Upon any sale or transfer of any Restricted Security
(including any interest in a global Note) (i) that is effected pursuant to an
effective registration statement under the Securities Act, (ii) that is
effected pursuant to Rule 144 as promulgated under the Securities Act as
determined by counsel to the Company or the Trustee or (iii) in connection
with which the Trustee (or transfer agent for the Common Stock, in the case
of shares of Common Stock) receives certificates and other information
(including an opinion of counsel, if requested) reasonably acceptable to the
Company and the Trustee (or such transfer agent, as the case may be) to the
effect that such security shall no longer be subject to the resale
restrictions under federal and state securities laws, then (A) in the case of
a Restricted Security in definitive form, the Note registrar or co-registrar
(or transfer agent, in the case of Common Stock) shall permit the holder
thereof to exchange such Restricted Security for a security that does not
bear the legends set forth in Section 2.5(d) or 2.5(e), as applicable, and
shall rescind any such restrictions on transfer and (B) in the case of
Restricted Securities represented by a global Note, such Note shall no longer
be subject to the restrictions contained in the legend set forth in Section
2.5(d) (but still subject to the other provisions hereof). In addition, any
Note (or security issued in exchange or substitution therefor) or shares of
Common Stock issued upon conversion of any Note, in either case, as to which
the restrictions on transfer described in the legends set forth in Section
2.5(d) and 2.5(e), respectively, have expired by their terms, may, upon
surrender thereof (in accordance with the terms of this Indenture in the case
of Notes) together with such certifications and other information (including
an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed
to the Company and the Trustee and in a form acceptable to the Company, to
the effect that the transfer of such Restricted Security has been made in
compliance with Rule 144 or such successor provision) acceptable to the
Company and the Trustee (or transfer agent, as
-25-
the case may be) as either of them may reasonably require, be exchanged for a
new Note or Notes of like tenor and aggregate principal amount (in the case
of Notes), or a new certificate or certificates for a like aggregate number
of shares of Common Stock (in the case of Common Stock), or a new certificate
or other instrument of like tenor and amount (in the case of securities
issued in exchange or substitution for Notes), which shall not bear the
restrictive legends set forth in Sections 2.5(d) and 2.5(e).
(g) Each holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such holder's Note in violation of any provision of this
Indenture and/or applicable U.S. federal or state securities law.
Section 6. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. In case
any Note shall become mutilated or be destroyed, lost or stolen, the Company
in its discretion may execute, and upon its request, the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery a new Note bearing a number not contemporaneously
outstanding in exchange and substitution for the mutilated Note or in lieu of
and in substitution for the Note so destroyed, lost or stolen. The Company
may charge such applicant for the expenses of the Company in replacing a
Note. In every case the applicant for a substituted Note shall furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
such security or indemnity as may be required by them to save each of them
harmless from any loss, liability, cost or expense caused by or connected
with such substitution, and in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, 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 connected therewith. In case any Note that has matured or is about
to mature or has been called for redemption or is about to be converted into
Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the
payment of or convert or authorize the conversion of the same (without
surrender thereof,
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except in the case of a mutilated Note), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent such security or indemnity
as may be required by them to save each of them harmless from any loss,
liability, cost or expense caused by or connected with such substitution, and
in case of destruction, loss or theft, evidence satisfactory to the Company,
the Trustee and, if applicable, any paying agent or conversion agent of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.6 in lieu of any Note that is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note shall be enforceable by anyone, and
shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law,
all Notes shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
or conversion of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion of negotiable instruments or other
securities without their surrender.
Section 7. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon written request of the Company,
authenticate and make available for delivery temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized
denomination and shall be substantially in the form of the definitive Notes
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such
temporary Note shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Notes. Without unreasonable delay the Company shall execute and deliver to
the Trustee or such authenticating agent definitive Notes (other than in the
case of Notes in global form) and thereupon any or all temporary Notes (other
than any such global Note) may be surrendered in exchange therefor, at each
office or agency maintained by the Company pursuant to Section 4.2 and the
Trustee or such authenticating agent shall authenticate and make available
for delivery in exchange for such temporary Notes an equal aggregate
principal
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amount of definitive Notes. Such exchange shall be made by the Company at
its own expense and without any charge therefor. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as definitive Notes
authenticated and delivered hereunder.
Section 8. CANCELLATION OF NOTES PAID, ETC. All Notes surrendered
for the purpose of payment, redemption, conversion, exchange or registration
of transfer shall, if surrendered to the Company or any paying agent or any
Note registrar or any conversion agent, be surrendered to the Trustee and
promptly canceled by it or, if surrendered to the Trustee, shall be promptly
canceled by it and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. If required
by the Company, the Trustee shall return canceled Notes to the Company. If
the Company shall acquire any of the Notes, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by
such Notes unless and until the same are delivered to the Trustee for
cancellation.
Section 9. CUSIP NUMBERS. The Company in issuing the Notes may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP numbers in notices of redemption as a convenience to holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee of any change in the
CUSIP numbers.
ARTICLE III
REDEMPTION OF NOTES
Section 1. REDEMPTION PRICES. The Notes are not redeemable at the
option of the Company prior to August 17, 1999. At any time on or after that
date, the Notes may be redeemed at the Company's option, upon notice as set
forth in Section 3.2, in whole at any time or in part from time to time, at
the optional redemption prices set forth below plus accrued and unpaid
interest thereon to the applicable redemption date if redeemed during the
period beginning:
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Redemption
Date Price
---- ----------
August 17, 1999. . . . . . . . . . . 103.63%
August 15, 2000. . . . . . . . . . . 102.42%
August 15, 2001. . . . . . . . . . . 101.21%
August 15, 2002 and thereafter . . . 100.00%
Section 2. NOTICE OF REDEMPTION; SELECTION OF NOTES. In case the
Company shall desire to exercise the right to redeem all or, as the case may
be, any part of the Notes pursuant to Section 3.1, it shall fix a date for
redemption and, in the case of any redemption pursuant to Section 3.1, it or,
at its request accompanied by the proposed form of notice of redemption
(which must be received by the Trustee at least ten days prior to the date
the Trustee is requested to give notice as described below, unless a shorter
period is agreed to by the Trustee), the Trustee in the name of and at the
expense of the Company, shall publish a notice in the Wall Street Journal and
mail or cause to be mailed a notice of such redemption at least 30 and not
more than 60 days prior to the date fixed for redemption to the holders of
Notes so to be redeemed as a whole or in part at their last addresses as the
same appear on the Note register, provided that if the Company shall give
such notice, it shall also give such notice, and notice of the Notes to be
redeemed, to the Trustee. Such mailing shall be by first class mail. The
notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any defect in
the notice to the holder of any Note designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption
of any other Note.
Each such notice of redemption shall identify the Notes to be
redeemed (including CUSIP numbers), specify the aggregate principal amount of
Notes to be redeemed, the date fixed for redemption, the redemption price at
which Notes are to be redeemed, the place or places of payment, that payment
shall be made upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption shall be paid as specified in said
notice and that on and after said date, interest thereon or on the portion
thereof to be redeemed shall cease to accrue. Such notice shall also state
the current Conversion Price and the date on which the right to convert such
Notes or portions thereof into Common Stock shall expire. If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the
Notes to be redeemed. In case any Note is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall
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state that on and after the date fixed for redemption, upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion
thereof shall be issued.
On or prior to the Business Day prior to the redemption date
specified in the notice of redemption given as provided in this Section 3.2,
the Company shall deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 4.4) an amount of money sufficient
to redeem on the redemption date all the Notes so called for redemption
(other than those theretofore surrendered for conversion into Common Stock)
at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If any Note called for redemption is converted
pursuant hereto, any money deposited with the Trustee or any paying agent or
so segregated and held in trust for the redemption of such Note shall be paid
to the Company upon its request or, if then held by the Company, shall be
discharged from such trust. If fewer than all the Notes are to be redeemed,
the Company shall give the Trustee written notice in the form of an Officers'
Certificate not fewer than 45 days (or such shorter period of time as may be
acceptable to the Trustee) prior to the redemption date as to the aggregate
principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed (in principal amounts of
$1,000 or integral multiples thereof), by lot or, in its discretion, on a PRO
RATA basis. If any Note selected for partial redemption is converted in part
after such selection, the converted portion of such Note shall be deemed (so
far as may be) to be the portion to be selected for redemption. The Notes
(or portions thereof) so selected shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Note is
converted as a whole or in part before the mailing of the notice of
redemption.
Upon any redemption of less than all Notes, the Company and the
Trustee may treat as outstanding any Notes surrendered for conversion during
the period of 15 days next preceding the mailing of a notice of redemption
and need not treat as outstanding any Note authenticated and delivered during
such period in exchange for the unconverted portion of any Note converted in
part during such period.
Section 3. PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Notes or portion of Notes
with respect to which such notice has been
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given shall, unless converted into Common Stock pursuant to the terms hereof,
become due and payable on the date and at the place or places stated in such
notice at the applicable redemption price, together with interest thereon
accrued to the date fixed for redemption, and on and after said date (unless
the Company shall default in the payment of such Notes at the redemption
price, together with interest thereon accrued to said date), interest on the
Notes or portion of Notes so called for redemption shall cease to accrue, and
such Notes shall cease after the close of business on the Business Day next
preceding the date fixed for redemption to be convertible into Common Stock
and, except as provided in Sections 7.6 and 12.4, to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have
no right in respect of such Notes except the right to receive the redemption
price thereof and unpaid interest thereon to the date fixed for redemption.
On presentation and surrender of such Notes at a place of payment in said
notice specified, the said Notes or the specified portions thereof shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
any semi-annual payment of interest becoming due on the date fixed for
redemption shall be payable to the holders of such Notes registered as such
on the relevant record date subject to the terms and provisions of Section
2.3 hereof.
Upon presentation of any Note redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or
Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the rate borne by the Note and such Note shall remain
convertible into Common Stock until the principal and premium, if any, shall
have been paid or duly provided for.
Section 4. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more
investment bankers or other purchasers to purchase such Notes by paying to
the Trustee in trust for the Noteholders, on or prior to the Business Day
prior to the date fixed for redemption, an amount not less than the
applicable redemption price, together with interest accrued to the date
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fixed for redemption, of such Notes. Notwithstanding anything to the contrary
contained in this Article III, the obligation of the Company to pay the
redemption price of such Notes, together with interest accrued to the date
fixed for redemption, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such an agreement is
entered into, a copy of which shall be filed with the Trustee prior to the
date fixed for redemption, any Notes not duly surrendered for conversion by
the holders thereof may, at the option of the Company, be deemed, to the
fullest extent permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary contained in Article
XIV) surrendered by such purchasers for conversion, all as of the time
immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Notes shall be deemed to have been
extended through such time), subject to payment of the above amount as
aforesaid. At the direction of the Company, the Trustee shall hold and
dispose of any such amount paid to it in the same manner as it would monies
deposited with it by the Company for the redemption of Notes. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations
of the Trustee as set forth in this Indenture, and the Company agrees to
indemnify the Trustee from, and hold it harmless against, any loss, liability
or expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Notes between the Company and such purchasers
including the costs and expenses incurred by the Trustee in the defense of
any claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations
under this Indenture.
Section 5. PURCHASE OF NOTES UPON A CHANGE OF CONTROL.
(a) If a Change of Control shall occur at any time, then each
holder of Notes shall have the right to require that the Company repurchase
such holder's Notes in whole or in part in integral multiples of $1,000 at a
purchase price (the "Change of Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Notes, plus accrued and unpaid
interest thereon, if any, to the purchase date (the "Change of Control
Purchase Date") pursuant to the offer described below (the "Change of Control
Offer") and in accordance with the other procedures set forth in this
Indenture.
(b) Within 10 days following any Change of Control, the Company
shall publish a notice in the Wall Street Journal,
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notify the Trustee thereof and give written notice of such Change of Control
to each holder of Notes, by first-class mail, postage prepaid, at the
Noteholder's address appearing in the Note register, stating, among other
things, (i) that a Change of Control has occurred, (ii) the Change of Control
Purchase Price, (iii) the Change of Control Purchase Date (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act), (iv) that any Note not tendered shall
continue to accrue interest and to have all of the benefits of this
Indenture, (v) that, unless the Company defaults in the payment of the Change
of Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date, (vi) that Noteholders electing to have any Notes
purchased pursuant to a Change of Control Offer shall be required to
surrender the Notes, with the form entitled "Option of Noteholder to Elect
Purchase" on the reverse of the Notes completed, to the Company at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Purchase Date, (vii) that
Noteholders shall be entitled to withdraw their election if the Company
receives, not later than the close of business on the second Business Day
preceding the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Noteholder, the
principal amount of Notes delivered for purchase, and a statement that such
Noteholder is withdrawing his election to have such Notes purchased, and
(viii) that Noteholders whose Notes are being purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company shall comply
with the requirements of Rule 13c-4 and 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes in
connection with a Change of Control.
(c) On the Change of Control Purchase Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Trustee an
amount equal to the Change of Control Purchase Price in respect of all Notes
or portions thereof so tendered and (iii) deliver or cause to be delivered to
the Trustee the Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof tendered to the Company. The Trustee
shall promptly mail to each Noteholder of Notes so accepted payment in an
amount equal to the purchase price of such Notes, and the Trustee shall
promptly authenticate
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and mail to each Noteholder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each such
new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(d) The term "Change in Control" shall mean an event or series of
events as a result of which (i) any person or group is or becomes the
beneficial owner of shares representing more than fifty percent (50%) of the
combined voting power of the then outstanding securities entitled to vote
generally in elections of directors of the Company (the "Voting Power Stock")
or (ii) the Company consolidates with or merges into any other corporation,
or conveys, transfers or leases all or substantially all of its assets to any
person, or any other corporation merges into the Company, and, in the case of
any such transaction, the outstanding Common Stock of the Company is changed
or exchanged as a result, unless the shareholders of the Company immediately
before such transaction own, directly or indirectly, immediately following
such transaction, at least fifty-one percent (51%) of the combined voting
power of the outstanding voting securities of the corporation resulting from
such transaction in substantially the same proportion as their ownership of
the Voting Power Stock immediately before such transaction; PROVIDED that a
Change in Control shall not be deemed to have occurred if either (i) the
closing price per share of the Common Stock for any 5 trading day within the
period of 10 consecutive trading days ending immediately after the later of
the Change in Control or the public announcement of the Change in Control (in
the case of a Change in Control under clause (1) above) or ending immediately
before the Change in Control (in the case of a Change in Control under clause
(2) above) shall equal or exceed 105% of the conversion price of the Notes in
effect on such trading day, or (ii) at least 90% of the consideration
(determined the date on which the Change of Control is triggered and
excluding cash payments for fractional shares) in the transaction or
transactions constituting the Change in Control consists of shares of common
stock traded on a national securities exchange or quoted on the Nasdaq
National Market and as a result of such transaction or transactions the Notes
become convertible solely into such common stock.
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
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Section 1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees that it shall duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Notes
at the places, at the respective times and in the manner provided herein and
in the Notes. Each installment of interest on the Notes due on any
semi-annual interest payment date may be paid by mailing checks for the
interest payable to or upon the written order of the holders of Notes
entitled thereto as they shall appear on the Note register; provided that,
with respect to any holder of Notes with an aggregate principal amount equal
to or in excess of $5,000,000, at the request (such request to include
appropriate wire instructions) of such holder in writing to the Trustee,
interest on such holder's Notes shall be paid by wire transfer in immediately
available funds. An installment of principal or interest shall be considered
paid on the date due if the Trustee or paying agent (other than the Company,
a subsidiary of the Company or any Affiliate of any of them) holds on that
date money designated for and sufficient to pay the installment of principal
or interest and is not prohibited from paying such money to the holders of
the Notes pursuant to the terms of this Indenture.
Section 2. MAINTENANCE OF OFFICE OR AGENCY. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion or redemption and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Trustee as paying
agent, Note registrar and conversion agent and each of the
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Corporate Trust Office of the Trustee and the office of Bank One, Columbus,
N.A. in the Borough of Manhattan, The City of New York, as such offices or
agencies of the Company for the purposes set forth in the first paragraph of
this Section 4.2.
So long as the Trustee is the Note registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 7.11(a) and the
third paragraph of Section 7.12.
Section 3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 7.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4. PROVISIONS AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than the
Trustee, or if the Trustee shall appoint such a paying agent, the Company or
the Trustee, as the case may be, shall cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.4:
(1) that it shall hold all sums held by it as such agent
for the payment of the principal of, premium, if any, or
interest on the Notes (whether such sums have been paid to
it by the Company or by any other obligor on the Notes) in
trust for the benefit of the holders of the Notes;
(2) that it shall give the Trustee notice of any failure by
the Company (or by any other obligor on the Notes) to make
any payment of the principal of, premium, if any, or
interest on the Notes when the same shall be due and
payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it shall forthwith pay
to the Trustee all sums so held in trust.
The Company shall, before each due date of the principal of,
premium, if any, or interest on the Notes, deposit with the paying agent a
sum sufficient to pay such principal, premium, if any, or interest, and
(unless such paying agent is the Trustee) the Company shall promptly notify
the Trustee of any failure to take such action.
(b) If the Company shall act as its own paying agent, it shall, on
or before each due date of the principal of, premium,
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if any, or interest on the Notes, set aside, segregate and hold in trust for
the benefit of the holders of the Notes a sum sufficient to pay such
principal, premium, if any, or interest so becoming due and shall notify the
Trustee of any failure to take such action and of any failure by the Company
(or any other obligor under the Notes) to make any payment of the principal
of, premium, if any, or interest on the Notes when the same shall become due
and payable.
(c) Anything in this Section 4.4 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by the Company or any paying agent
hereunder as required by this Section 4.4, such sums to be held by the
Trustee upon the trusts herein contained and upon such payment by the Company
or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such sums.
(d) Anything in this Section 4.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.4 is
subject to Sections 12.3 and 12.4.
Section 5. CORPORATE EXISTENCE. Subject to Article XI, the
Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of any subsidiary of the Company, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and
its subsidiaries; provided that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of its subsidiaries if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its subsidiaries, taken as a whole, and
that the loss thereof is not materially adverse to the Holders of the Notes.
Section 6. RULE 144A INFORMATION REQUIREMENT. During the
three-year period following the original issuance date of any Note and during
the three-year period following the last date on which the Company or an
Affiliate of the Company was the owner of any Note (or shares of Common Stock
issued upon conversion of any Note), if the Company is subject neither to
Section 13 nor Section 15(d) of the Exchange Act, the Company shall at the
written request of any holder or beneficial holder of such Note (or shares of
Common Stock issued upon conversion of Notes) provide to such holder or
beneficial holder of such Note (or shares of Common Stock issued upon
conversion of Notes) and any prospective transferee designated by such holder
or beneficial holder of such Note
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(or shares of Common Stock issued upon conversion of Notes) such information,
if any, required by Rule 144A(d)(4) under the Securities Act (so long as such
information is required to permit such transfer under Rule 144A).
Section 7. STAY, EXTENSION AND USURY LAWS. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 8. COMPLIANCE STATEMENT; NOTICE OF DEFAULTS
(a) The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company an Officer's Certificate stating
whether or not to the best knowledge of the signers thereof the Company is in
compliance (without regard to periods of grace or notice requirements) with
all conditions and covenants under this Indenture, and if the Company shall
not be in compliance, specifying such non-compliance and the nature and
status thereof of which such signer may have knowledge.
(b) The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default within ten days of
its becoming aware of any such default or Event of Default.
Section 9. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. The Company shall not, and shall not permit any of
its subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any subsidiary to (i) pay dividends or make any other
distribution on its Capital Stock or with respect to any other
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interest or participation in, or measured by, its profits, or pay any
indebtedness owed to, the Company or a subsidiary of the Company, (ii) make
loans or advances to the Company or any subsidiary of the Company, or (iii)
transfer any of its properties or assets to the Company, except for such
encumbrances or restrictions existing under or by reason of (x) the Credit
Facilities or any other agreement pursuant to which Senior Indebtedness
exists or is created, issued, assumed or guaranteed; (y) any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the agreements described in clause (x)
hereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are no more
restrictive with respect to such dividend and other payment restrictions than
those contained in such agreements as in effect on the execution date of this
indenture; (z) (A) customary provisions restricting the transfer of property
or assets contained in any conditional sales contract or capitalized lease;
(B) applicable law; (C) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Company or any
subsidiary which lease was entered into in the ordinary course of business
and consistent with past practice; or (D) any instrument governing
indebtedness of a person acquired by the Company or any subsidiary of the
Company at the time of such acquisition, which encumbrance or restriction is
not applicable to any person, or the properties or assets of any person,
other than the person, or the property or assets of the person, so acquired.
Section 10. TAXES. The Company shall pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges (including withholding taxes and
any penalties, interest and additions to taxes) levied or imposed upon the
Company or its subsidiaries or upon the income, profits or property of the
Company or any such subsidiary and (ii) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company or any such subsidiary; provided that the Company
shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings and for
which disputed amounts adequate reserves have been made.
Section 11. INSURANCE. The Company shall provide, or cause to be
provided, for itself and its subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured
against by corporations similarly
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situated and owning like properties, including, but not limited to, products
liability insurance and public liability insurance, with reputable insurers
or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts with such deductibles and by such
methods as shall be determined in good faith by the Board of Directors to be
appropriate.
ARTICLE V.
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY
Section 1. NOTEHOLDERS' LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of holders of Notes and shall otherwise comply
with Trust Indenture Act Section 312(a). If the Trustee is not the Notes
registrar, the Company shall furnish to the Trustee on or before at least
seven Business Days preceding each interest payment date and at such other
times as the Trustee may request in writing a list in such form and as of
such date as the Trustee reasonably may require of the names and addresses of
holders of Notes, and the Company shall otherwise comply with Trust Indenture
Act Section 312(a).
Section 2. REPORTS BY COMPANY. The Company shall deliver to the
Trustee within 15 days after it files the same with the Commission, copies of
all reports and information (or copies of such portions of any of the
foregoing as the Commission may by its rules and regulations prescribe), if
any, which the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act or pursuant to the immediately
following sentence. So long as at least $5,000,000 aggregate principal
amount of Notes remain outstanding, the Company shall file with the
Commission such reports as may be required pursuant to Section 13 of the
Exchange Act in respect of a security registered pursuant to Section 12 of
the Exchange Act, regardless of whether the Company is otherwise required to
file such reports. If the Company is not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act (or otherwise
required to file reports pursuant to the immediately preceding sentence), the
Company shall deliver to the Trustee, within 15 days after it would have been
required to file such information with the Commission were it required to do
so, annual and quarterly financial statements, including any notes thereto
(and, in the case of a fiscal year end, an auditors' report by an independent
certified public accounting firm of established national reputation), and a
"Management's Discussion and Analysis
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of Financial Condition and Results of Operations," in each case substantially
equivalent to that which it would have been required to include in such
quarterly or annual reports, information, documents or other reports if it
had been subject to the requirements of Section 13 or 15(d) of the Exchange
Act. The Company shall provide copies of the foregoing materials to the
Noteholders to the extent required by the Trust Indenture Act once this
Indenture has been qualified. The Company shall also comply with the other
provisions of the Trust Indenture Act Section 314(a).
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 1. EVENTS OF DEFAULT. In case one or more of the
following Events of Default (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body) shall
have occurred and be continuing:
(a) default in the payment of the principal of or premium,
if any, on the Notes when due at maturity, upon redemption or
otherwise, including failure by the Company to purchase the Notes
when required under Section 3.5 (whether or not such payment shall
be prohibited by Article XV of this Indenture); or
(b) default in the payment of any installment of interest on
the Notes as and when the same shall become due and payable (whether
or not such payment shall be prohibited by Article XV of this
Indenture), and continuance of such default for a period of 30
days; or
(c) a failure on the part of the Company duly to observe or
perform any other covenants or agreements on the part of the
Company in this Indenture (other than a default in the performance
or breach of a covenant or agreement that is specifically dealt
with elsewhere in this Section 6.1)
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that continues for a period of 90 days after the date on which
written notice of such failure, requiring the Company to remedy the
same, shall have been given to the Company by the Trustee, or to
the Company and a Responsible Officer of the Trustee, by the
holders of at least 25% in aggregate principal amount of the Notes
at the time outstanding determined in accordance with Section 8.4;
or
(d) an event of default occurs under any mortgage, indenture
or instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the
Company or any of its subsidiaries (or the payment of which is
guaranteed by the Company or any of its subsidiaries), whether such
indebtedness or guarantee now exists or shall be created after the
date hereof, which default (i) is caused by a failure to pay
principal or interest on such indebtedness prior to the expiration
of the grace period provided in such indebtedness (a "Payment
Default") or (ii) results in the acceleration of such indebtedness
prior to its expressed maturity and, in each case, the principal
amount of such indebtedness, together with the principal amount of
any other such indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated,
aggregates $10 million or more;
(e) final judgments or decrees shall be entered by a court of
competent jurisdiction against the Company or any subsidiary
involving liabilities of $10 million or more (singly or in the
aggregate) (after deducting the portion of such liabilities
accepted by a reputable insurance company) and such final judgments
or decrees shall not have been vacated, discharged, satisfied or
stayed pending appeal within 60 days from the entry thereof;
(f) the Company shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it or shall make a general assignment
for the benefit of creditors or shall fail generally to pay its
debts as they become due; or
(g) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization
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or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 60 consecutive days;
then, and in each and every such case (other than an Event of Default
specified in Section 6.1(f) or (g)), unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the holders
of not less than 25% in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 8.4, by notice in
writing to the Company (and to the Trustee if given by Noteholders), may
declare the principal of, premium, if any, on the Notes and the interest
accrued thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 6.1(f) or (g)
occurs and is continuing, the principal of all the Notes and the interest
accrued thereon shall be immediately due and payable. The foregoing
provision is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all Notes and the principal of and premium, if
any, on any and all Notes that shall have become due otherwise than by
acceleration (with interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under applicable law) and
on such principal and premium, if any, at the rate borne by the Notes, to the
date of such payment or deposit) and amounts due to the Trustee pursuant to
Section 7.7, and if any and all defaults under this Indenture, other than the
nonpayment of principal of, premium, if any, and accrued interest on Notes
that shall have become due by acceleration, shall have been cured or waived
pursuant to Section 6.7, then and in every such case the holders of a
majority in aggregate principal amount of the Notes then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults or
Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or Event of Default, or shall impair
any right consequent thereto. The Company shall notify a Responsible Officer
of the Trustee, promptly upon becoming aware thereof, of any Event of Default.
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In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the holders of Notes and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes and the Trustee
shall continue as though no such proceeding had been taken.
Section 2. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR. The
Company covenants that (a) in case default shall be made in the payment of
any installment of interest upon any of the Notes as and when the same shall
become due and payable, and such default shall have continued for a period of
30 days, or (b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Notes as and when the same shall have
become due and payable, whether at maturity of the Notes or in connection
with any redemption, by declaration or otherwise, then, upon demand of the
Trustee, the Company shall pay to the Trustee, for the benefit of the holders
of the Notes, the whole amount that then shall have become due and payable on
all such Notes for principal premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal, premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate borne by the
Notes; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any
expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith. Until such demand by the Trustee, the Company
may pay the principal of and premium, if any, and interest on the Notes to
the registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law or in equity for the collection of the sums so due and unpaid and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.
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In the case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Notes
under Title 11 of the United States Code or any other applicable law, or in
case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the case of any other judicial
proceedings relative to the Company or such other obligor upon the Notes, or
to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to
the provisions of this Section 6.2, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal, premium, if any, and interest owing
and unpaid in respect of the Notes and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
Noteholders allowed in such judicial proceedings relative to the Company or
any other obligor on the Notes, its or their creditors, or its or their
property and to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after the deduction
of any amounts due the Trustee under Section 7.7; and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders 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 Noteholders, to pay to the
Trustee any amount due it for reasonable compensation, expenses, advances and
disbursements, including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such
proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property that the holders of the
Notes may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or adopt on behalf of any Noteholder any plan of
reorganization or arrangement affecting the Notes or the rights of any
Noteholder, or to authorize the
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Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the holders of
the Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
Section 3. APPLICATION OF MONIES COLLECTED BY TRUSTEE. Any monies
collected by the Trustee pursuant to this Article VI shall be applied in the
order following, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under
Section 7.7;
Second: Subject to the provisions of Article XV, in case
the principal of the outstanding Notes shall not have become due
and be unpaid, to the payment of interest on the Notes in default
in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at the
rate borne by the Notes, such payments to be made ratably to the
persons entitled thereto; and
Third: Subject to the provisions of Article XV, in case
the principal of the outstanding Notes shall have become due, by
declaration or otherwise, and be unpaid, to the payment of the
whole amount then holding and unpaid upon the Notes for principal,
premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such
interest has been collected by the
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Trustee) upon overdue installments of interest at the rate borne by
the Notes; and in case such monies shall be insufficient to pay in
full the whole amounts so due and unpaid upon the Notes, then to
the payment of such principal, premium, if any, and interest
without preference or priority of principal and premium, if any,
over interest, or of interest over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued and
unpaid interest.
Section 4. PROCEEDINGS BY NOTEHOLDER. No holder of any Note shall
have any right by virtue of or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof,
as hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Notes then outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.7; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes 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 holder of Notes, to obtain or seek to obtain priority over or
preference to any other such holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Notes (except as otherwise provided
herein). For the protection and enforcement of this Section 6.4, each and
every Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment
of the principal of, premium, if any, and
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interest on such Note, on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such holder except as otherwise set forth
herein.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable
to enforce, his rights of conversion as provided herein.
Section 5. PROCEEDINGS BY TRUSTEE. In case of an Event of
Default, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section 6. REMEDIES CUMULATIVE AND CONTINUING. Except as provided
in Section 2.6, all powers and remedies given by this Article VI to the
Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of such powers and remedies or of any
other powers and remedies available to the Trustee or the holders of the
Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and
no delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default or Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such default or any acquiescence
therein; and, subject to the provisions of Section 6.4, every power and
remedy given by this Article VI or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
Section 7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF NOTEHOLDERS. The holders of a majority in aggregate principal
amount of the Notes at the time outstanding (determined in accordance with
Section 8.4) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising
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any trust or power conferred on the Trustee; provided that (a) such direction
shall not be in conflict with any rule of law or with this Indenture and (b)
the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. The holders of a majority in aggregate
principal amount of the Notes at the time outstanding (determined in
accordance with Section 8.4) may on behalf of the holders of all of the Notes
waive any past default or Event of Default hereunder and its consequences
except (i) a default in the payment of interest or premium, if any, on, or
the principal of, the Notes, (ii) a failure by the Company to convert any
Notes into Common Stock or (iii) a default in respect of a covenant or
provisions hereof that under Article X cannot be modified or amended without
the consent of the holders of all Notes then outstanding. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
this Section 6.7, said default or Event of Default shall for all purposes of
the Notes and this Indenture be deemed to have been cured and to be not
continuing and the Company, the Trustee and the holders of the Notes shall be
restored to their former positions and rights hereunder; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 8. NOTICE OF DEFAULTS. The Trustee shall, within 90 days
after the occurrence of a default, mail to all Noteholders, as the names and
addresses of such holders appear upon the Note register, notice of all
defaults known to a Responsible Officer, unless such defaults shall have been
cured or waived before the giving of such notice; provided that, except in
the case of default in the payment of the principal of, premium, if any, or
interest on any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Noteholders.
Section 9. UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each holder of any Note 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 or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section 6.9 shall not apply to any suit instituted
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by the Trustee, to any suit instituted by any Noteholder or group of
Noteholders holding in the aggregate more than 10% in principal amount of the
Notes at the time outstanding determined in accordance with Section 8.4 or to
any suit instituted by any Noteholder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Note on or after the
due date expressed in such Note or to any suit for the enforcement of the
right to convert any Note in accordance with the provisions of Article XIV.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 1. DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided that in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
grossly negligent action, its own grossly negligent failure to act or its own
willful misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by an officer of the Trustee unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.7.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
7.1.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it against
any loss, liability or expense.
Section 2. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after
each May 15 commencing with the May 15 following the date of this Indenture,
the Trustee shall, if required by the Trust Indenture Act, mail to each
Noteholder a brief report dated as of such May 15 that complies with Trust
Indenture Act Section 313(a). The Trustee also shall comply with Trust
Indenture Act Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the
Notes become listed or delisted on any stock exchange or automatic quotation
system.
A copy of each report at the time of its mailing to Noteholders
shall be mailed to the Company and, to the extent required by Section 5.2
hereof and of the Trust Indenture Act Section 313(d), filed with the
Commission and each stock exchange, if any, on which the Notes are listed.
Section 3. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 7.1:
(a) The Trustee may rely and shall be protected in
acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture,
coupon or other paper or document believed by it in good faith to
be genuine and to have been signed or presented by the proper party
or parties;
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(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed or required by the Trust Indenture
Act); and any resolution of the Board of Directors may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) The Trustee may consult with counsel of its
selection and any advice or opinion of counsel shall be full and
complete authorization and protection in respect of any action
taken or omitted by it hereunder in good faith and in accordance
with such advice or opinion of counsel;
(d) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder; no
Depositary, Custodian or paying agent who is not the Trustee shall
be deemed an agent of the Trustee, and the Trustee (in its capacity
as Trustee) shall not be responsible for any act or omission by any
such Depositary, Custodian or paying agent;
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by the Indenture at the
request or direction of any of the holders pursuant to this
Indenture unless such holders have offered the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that would be incurred by it in compliance with such request or
direction.
(f) Subject to the provisions of Section 7.1(c), the
Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its
rights or powers;
(g) In connection with any request to transfer or
exchange any Note, the Trustee may request a direction (in the form
of an Officers' Certificate) from the Company and an Opinion of
Counsel with respect to compliance with any restrictions on
transfer or exchange imposed by this Indenture, the Securities Act,
other applicable law or the rules and regulations of any exchange
on which the Notes or the capital stock may be traded, and the
Trustee may rely and shall be protected in acting upon such
direction and in
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accordance with such Officers' Certificate and Opinion of Counsel;
(h) The Trustee may rely and shall be fully protected in
acting upon the determination and notice by the Company of the
Conversion Price; and
(i) The Trustee shall not be deemed to have knowledge of
any Event of Default or other fact or event upon the occurrence of
which it may be required to take action hereunder unless one of its
Responsible Officers has actual knowledge thereof.
Section 4. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use
or application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions
of this Indenture.
Section 5. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR
MAY OWN NOTES. The Trustee, any paying agent, any conversion agent or any
Note registrar, in its individual or any other capacity, may become the owner
or pledgee of Notes with the same rights it would have if it were not
Trustee, paying agent, conversion agent or Note registrar.
Section 6. MONIES TO BE HELD IN TRUST. Subject to the provisions
of Section 12.4, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as may be agreed to in writing from time to time by the
Company and the Trustee.
Section 7. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
from time to time agree in writing, for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), and the Company shall
pay or reimburse the Trustee upon its request for
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all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify each of the Trustee or any predecessor
Trustee in any capacity under this Indenture and its agents and any
authenticating agent for, and to hold them harmless against, any and all
loss, liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith
on the part of the Trustee or such agent or authenticating agent, as the case
may be, and arising out of or in connection with the acceptance or
administration of this trust or in any other capacity hereunder, including
the costs and expenses of defending themselves against any claim of liability
in the premises. The obligations of the Company under this Section 7.7 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a lien prior to that
of the Notes upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Notes. The obligation of the Company under this Section shall survive the
satisfaction and discharge of this Indenture.
Section 8. OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Section 7.1, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Officers' Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 9. CONFLICTING INTERESTS OF TRUSTEE. In the event that
the Trust Indenture Act is applicable hereto, and if the Trustee has or shall
acquire a conflicting interest within the meaning of Trust Indenture Act
Section 310(b) and there exists an Event of Default hereunder (exclusive of
any period of grace or requirement of notice), the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
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Section 10. ELIGIBILITY OF TRUSTEE. There shall at all times be a
Trustee hereunder that shall be a person that satisfied the requirements of
Trust Indenture Act Section 310(a)(1) and Section 310(a)(5) and that has a
combined capital and surplus of at least $50,000,000. If such person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VII.
Section 11. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign by giving written notice of
such resignation to the Company; and the Company shall mail, or cause to be
mailed, notice thereof to the holders of Notes at their addresses as they
shall appear on the Note register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with Section 7.9
after written request therefor by the Company or by any Noteholder
who has been a BONA FIDE holder of a Note or Notes for at least six
months; or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.10 and shall fail to resign after
written request therefor by the Company or by any such Noteholder;
or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation,
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then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee or any Noteholder who
has been a BONA FIDE holder of a Note or Notes for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate
a successor trustee, which shall be deemed appointed as successor trustee
unless within ten days after notice to the Company of such nomination the
Company objects thereto, in which case the Trustee so removed or any
Noteholder, upon the terms and conditions and otherwise as provided in the
next paragraph, may petition any court of competent jurisdiction for an
appointment of a successor trustee.
If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after removal or the mailing of such
notice of resignation to the Noteholders, the Trustee resigning or being
removed may petition any court of competent jurisdiction for the appointment
of a successor trustee, or, in the case of either resignation or removal, any
Noteholder who has been a BONA FIDE holder of a Note or Notes for at least
six months may, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this
Section 7.11 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.12.
Section 12. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 7.11 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon, the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but on the written
request of the Company or of the successor trustee, the Trustee ceasing to
act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.7, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the Trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such trustee as such, except for funds held in trust for
the benefit of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 7.7.
No successor trustee shall accept appointment as provided in this
Section 7.12 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.9 and eligible under the
provisions of Section 7.10.
Upon acceptance of appointment by a successor trustee as provided
in this Section 7.12, the Company shall mail or cause to be mailed notice of
the succession of such Trustee hereunder to the holders of Notes at their
addresses as they shall appear on the Note register. If the Company fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
Section 13. SUCCESSOR, BY MERGER, ETC. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be
the successor to the Trustee hereunder, provided such corporation shall be
qualified under the provisions of Section 7.9 and eligible under the
provisions of Section 7.10 without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
Section 14. LIMITATION ON RIGHTS OF TRUSTEE AS CREDITOR. If and
when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes) and the
Trust Indenture Act is applicable hereto, the Trustee
shall be subject
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to the provisions of Trust Indenture Act Section 311(a) or, if applicable,
Trust Indenture Act Section 311(b) regarding the collection of the claims
against the Company (or any such other obligor).
ARTICLE VIII
CONCERNING THE NOTEHOLDERS
Section 1. ACTION BY NOTEHOLDERS. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, (b) by the
record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article
IX or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders. Whenever the Company or the Trustee
solicits the taking of any action by the holders of the Notes, the Company or
the Trustee may fix in advance of such solicitation, a date as the record
date for determining holders entitled to take such action. The record date
shall be not more than 15 days prior to the date of commencement of
solicitation of such action.
Section 2. PROOF OF EXECUTION BY NOTEHOLDERS. Subject to the
provisions of Sections 7.1, 7.2 and 9.5, proof of the execution of any
instrument by a Noteholder or by agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee.
The holding of Notes shall be proved by the Note register or by a certificate
of the Note registrar.
The record of any Noteholders' meeting shall be proved in the
manner provided in Section 9.5.
Section 3. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the
Trustee, any paying agent, any conversion agent and any Note registrar may
deem the person in whose name such Note shall be registered upon the books of
the Company to be, and may treat such person as, the absolute owner of such
Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon) for the purpose of receiving
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payment of or on account of the principal of, premium, if any, and interest
on such Note, for conversion of such Note and for all other purposes; and
neither the Company nor the Trustee nor any paying agent nor any conversion
agent nor any Note registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being, or upon order of
such holder, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note.
The Depositary shall be deemed to be the owner of any global Note
for all purposes, including receipt of notices to Noteholders and payment of
principal of, premium, if any, and interest on the Notes. None of the
Company, the Trustee (in its capacity as Trustee), any paying agent or the
Note registrar (or co-registrar) shall have any responsibility for any aspect
of the records relating to or payments made on account of beneficial
interests of a global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests; provided that the
foregoing shall not apply to the Trustee or any other person acting in its
capacity as Custodian.
Section 4. COMPANY-OWNED NOTES DISREGARDED. In determining
whether the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes that are owned by the Company or any other obligor on the
Notes or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor
on the Notes shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes that a Responsible
Officer actually knows are so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 8.4 if the pledgee shall establish to the
satisfaction of the Trustee the xxxxxxx'x right to vote such Notes and that
the pledgee is not the Company, any other obligor on the Notes or a person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Notes, if any, known by the
Company to be owned or held by or for the account of any of the above
described persons; and subject to Section 7.1, the Trustee shall be entitled
to accept
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such Officers' Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Notes not listed therein are outstanding for
the purpose of any such determination.
Section 5. REVOCATION OF CONSENTS, FUTURE HOLDERS BOUND. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.1, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note that is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 8.2, revoke
such action so far as concerns such Note. Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon
such holder and upon all future holders and owners of such Note and of any
Notes issued in exchange or substitution therefor, irrespective of whether
any notation in regard thereto is made upon such Note or any Note issued in
exchange or substitution therefor.
ARTICLE IX
NOTEHOLDERS' MEETINGS
Section 1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Noteholders may be called at any time and from time to time pursuant to
the provisions of this Article IX for any of the following purposes:
(i) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to take
any other action authorized to be taken by Noteholders pursuant to
any of the provisions of Article VI;
(ii) to remove the Trustee and appoint a successor
trustee pursuant to the provisions of Article VII;
(iii) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 10.2; or
(iv) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate principal
amount of the Notes under any other provisions of this Indenture or
under applicable law.
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Section 2. MANNER OF CALLING MEETINGS; RECORD DATE. The Trustee
may at any time call a meeting of Noteholders to take any action specified in
Section 9.1, to be held at such time and at such place in the City of New
York, State of New York, as the Trustee shall determine. Notice of every
meeting of the Noteholders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed not less than 30 nor more than 60 days prior to the date
fixed for the meeting to such Noteholders at their addresses as such
addresses appear in the Note register. For the purpose of determining
Noteholders entitled to notice of any meeting of Noteholders, the Trustee
shall fix in advance a date as the record date for such determination, such
date to be a business day not more than ten days prior to the date of the
mailing of such notice as hereinabove provided. Only persons in whose name
any Note shall be registered in the Note register at the close of business on
a record date fixed by the Trustee as aforesaid, or by the Company or the
Noteholders as provided in Section 9.3, shall be entitled to notice of the
meeting of Noteholders with respect to which such record date was so fixed.
Section 3. CALL OF MEETING BY COMPANY OR NOTEHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors or
the holders of at least 10% in aggregate principal amount of the Notes then
outstanding shall have requested the Trustee to call a meeting of Noteholders
to take any action authorized in Section 9.1 by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the holders of Notes in the
amount above specified, as the case may be, may fix the record date with
respect to, and determine the time and the place for, such meeting and may
call such meeting to take any action authorized in Section 9.1, by mailing
notice thereof as provided in Section 9.2. The record date fixed as provided
in the preceding sentence shall be set forth in a written notice to the
Trustee and shall be a business day not less than 15 nor more than 20 days
after the date on which the original request is sent to the Trustee.
Section 4. WHO MAY ATTEND AND VOTE AT MEETINGS. Only persons
entitled to receive notice of a meeting of Noteholders and their respective
proxies duly appointed by an instrument in writing shall be entitled to vote
at such meeting. The only persons who shall be entitled to be present or to
speak at any meeting of Noteholders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel. When a
determination of Noteholders entitled to
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vote at any meeting of Noteholders has been made as provided in this Section,
such determination shall apply to any adjournments thereof.
Section 5. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. The
vote upon any resolution submitted to any meeting of Noteholders shall be by
written ballots on each of which shall be subscribed the signature of the
Noteholder or proxy casting such ballot and the identifying number or numbers
of the Notes held or represented in respect of which such ballot is cast. 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 Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said 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 said
notice was mailed as provided in Section 9.2. The record shall show the
identifying numbers of the Notes voting in favor of or against any
resolution. Each counterpart of such record shall be signed and verified by
the affidavits of the chairman and secretary of the meeting and one of the
counterparts shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.
Any counterpart record so signed and verified shall be conclusive
evidence of the matters therein stated and shall be the record referred to in
clause (b) of Section 8.1.
Section 6. EXERCISE OF RIGHTS OF TRUSTEE AND NOTEHOLDERS NOT TO BE
HINDERED OR DELAYED. Nothing in this Article IX contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Noteholders or any rights expressly or impliedly conferred hereunder to make
such call, any hinderance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Noteholders under any of
the provisions of this Indenture or of the Notes.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into
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an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to make provision with respect to the conversion rights
of the holders of Notes pursuant to the requirements of Section
14.6;
(b) subject to Article XV, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Notes, any
property or assets;
(c) to evidence the succession of another person to the
Company, or successive successions, and the assumption by the
Successor Company of the covenants, agreements and obligations of
the Company pursuant to Article XI;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and
the Trustee shall consider to be for the benefit of the holders of
Notes and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in
respect of any such additional covenant, restriction or condition,
such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Notes
in coupon form (including Notes registrable as to principal only)
and to provide for exchangeability of such Notes with the Notes
issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture that
may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this
Indenture that shall not adversely affect the interests of the
holders of the Notes;
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(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent necessary to effect the qualification of
this Indenture under the Trust Indenture Act (if applicable), or
under any similar federal statute hereafter enacted (if applicable).
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the
Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 10.2.
Section 2. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
With the consent (evidenced as provided in Article VIII) of the holders of
not less than a majority in aggregate principal amount of the Notes at the
time outstanding, the Company, when authorized by a Board Resolution and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or any supplemental indenture or of modifying in any manner the rights of the
holders of the Notes; provided that, without the consent of the holders of
all Notes then outstanding, no such supplemental indenture shall (i) extend
the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or
premium, if any, thereon or reduce any amount payable on redemption thereof,
alter the obligation of the Company to redeem the Notes at the option of the
holder upon the occurrence of a Change of Control or impair or affect the
right of any Noteholder to institute suit for the payment thereof or make the
principal thereof or interest or premium, if any, thereon payable in any coin
or currency other than that provided in the Notes, modify the subordination
provisions in a manner adverse to the holders of the Notes, or impair the
right to convert the Notes into Common Stock subject to the terms set
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forth herein without the consent of the holder of each Note so affected or
(ii) reduce the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 10.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 3. EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental
indenture executed pursuant to the provisions of this Article X shall comply
with the Trust Indenture Act, as then in effect, if such supplemental
indenture is then required to so comply. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article X, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and
the holders of Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
Section 4. NOTATION ON NOTES. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions
of this Article X may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture, but they need not do
so. If the Company or the Trustee shall determine to add such a notation,
new Notes so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any
such supplemental indenture may, at the Company's expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 16.14) and delivered
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in exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.
Section 5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee shall be furnished with and, subject to the
provisions of Sections 7.1 and 7.2, may rely upon an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant hereto complies with the requirements of this
Article X.
ARTICLE XI
CONSOLIDATION, MERGER, SALE, CONVEYANCE,
TRANSFER AND LEASE
Section 1. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. The
Company shall not consolidate with or merge with or into, or convey, transfer
or lease all or substantially all of its assets (determined on a consolidated
basis) to any person unless: (i) either the Company is the resulting,
surviving or transferee person (the "Successor Company") or the Successor
Company is a person organized and existing under the laws of the United
States or any State thereof or the District of Columbia, and the Successor
Company (if not the Company) expressly assumes by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under this Indenture and the Notes,
including the rights pursuant to Article XIV hereof, (ii) immediately after
giving effect to such transaction, no Event of Default has happened and is
continuing and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.
Section 2. SUCCESSOR COMPANY TO BE SUBSTITUTED. In case of any
such consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of, premium, if any, and interest on
all of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, such
Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party hereto. When a
Surviving Person duly assumes all the obligations of the Company pursuant to
their Indenture and the Notes, the predecessor shall be released from all
such obligations.
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Section 3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee
subject to Sections 7.1 and 7.2, shall receive an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease and any such assumption complies
with the provisions of this Article XI.
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ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 1. LEGAL DEFEASANCE AND COVENANT DEFEASANCE OF THE NOTES.
(a) The Company may, at its option by Board Resolution, at any
time, with respect to the Notes, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Notes upon compliance with
the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of the Sections of and matters under this
Indenture referred to in clauses (i) and (ii) below and to have satisfied all
its other obligations under such Notes and this Indenture insofar as such
Notes are concerned, except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of holders of
outstanding Notes to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments
in respect of the principal of, premium, if any, and interest on such Notes
when such payments are due and (ii) obligations listed in Section 12.3.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Section 4.9,
Article XI and Section 3.5 with respect to the outstanding Notes on and after
the date the conditions set forth in paragraph (d) are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether
directly or
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indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document, and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.1, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) The Company shall have irrevocably deposited in trust
with the Trustee, pursuant to an irrevocable trust and security
agreement in form and substance satisfactory to the Trustee, cash
or U.S. Government Obligations maturing as to principal and
interest at such times, or a combination thereof, in such amounts
as are sufficient, without consideration of the reinvestment of
such interest and after payment of all federal, state and local
taxes or other charges or assessments in respect thereof payable by
the Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof (in form and substance reasonably satisfactory to the
Trustee) delivered to the Trustee, to pay the principal of,
premium, if any, and interest on the outstanding Notes on the dates
on which any such payments are due and payable in accordance with
the terms of this Indenture and of the Notes;
(ii) (A) No Event of Default shall have occurred or be
continuing on the date of such deposit, and (B) no Default or Event
of Default under Section 6.1(f) or 6.1(g) shall occur on or before
the 123rd day after the date of such deposit;
(iii) Such deposit shall not result in a Default under
this Indenture or a breach or violation of, or constitute a default
under, any other instrument or agreement to which the Company is a
party or by which it or its property is bound;
(iv) In the case of a legal defeasance under paragraph (b)
above, the Company has delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect
that, and based thereon
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such opinion shall confirm that, the holders of the Notes shall not
recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and shall be
subject to federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and, in the
case of a covenant defeasance under paragraph (c) above, the
Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that holders of the
Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance and shall
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(v) The holders shall have a perfected security interest
under applicable law in the cash or U.S. Government Obligations
deposited pursuant to Section 12.1(d)(i) above;
(vi) The Company shall have delivered to the Trustee an
Opinion of Counsel, in form and substance reasonably satisfactory
to the Trustee, to the effect that, after the passage of 123 days
following the deposit, the trust funds shall not be subject to any
applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally;
(vii) Such defeasance shall not cause the Trustee to have
a conflicting interest with respect to any securities of the
Company; and
(viii) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent specified herein relating to the
defeasance contemplated by this Section 12.1 have been complied
with;
provided, that no deposit under clause (i) shall be effective to terminate
the obligations of the Company under the Notes or this Indenture prior to the
passage of 123 days following such deposit.
Section 2. TERMINATION OF OBLIGATIONS UPON CANCELLATION OF THE
NOTES. In addition to the Company's rights under Section 12.1, the Company
may terminate all of its obligations under this Indenture (subject to Section
12.3) when:
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(a) (i) all Notes theretofore authenticated and delivered
(other than Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 2.6) have been
delivered to the Trustee for cancellation; and
(ii) the Company has paid or caused to be paid all other
sums payable hereunder and under the Notes by the Company; or
(b) (i) the Notes not previously delivered to the Trustee
for cancellation shall have become due and payable or are by their
terms to become due and payable within one year or are to be called
for redemption under arrangements satisfactory to the Trustee upon
delivery of notice, (ii) the Company shall have irrevocably
deposited with the Trustee, as trust funds, cash, in an amount
sufficient to pay principal of and interest on the outstanding
Notes, to maturity or redemption, as the case may be, (iii) such
deposit shall not result in a breach or violation of, or constitute
a default under, any agreement or instrument pursuant to which the
Company is a party or by which it or its property is bound and (iv)
the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions related
to such defeasance have been complied with.
Section 3. SURVIVAL OF CERTAIN OBLIGATIONS. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 12.1 or 12.2, the respective obligations of the Company and the
Trustee under Sections 2.3, 2.4, 2.5, 2.6, 3.1, 4.2, 5.1, 6.4, 6.9, 7.6,
7.11, 12.5, 12.6, 12.7, Articles XIV and XV shall survive until the Notes are
no longer outstanding, and thereafter, the obligations of the Company and the
Trustee under Sections 6.9, 7.6, 12.5, 12.6 and 12.7 shall survive. Nothing
contained in this Article XII shall abrogate any of the rights, obligations
or duties of the Trustee under this Indenture.
Section 4. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE. Subject to
Section 12.7, after (i) the conditions of Section 12.1 or 12.2 have been
satisfied, (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of
the Company's obligations under this
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Indenture except for those surviving obligations specified in Section 12.3.
Section 5. APPLICATION OF TRUST ASSETS. The Trustee shall hold any
cash or U.S. Government Obligations deposited with it in the irrevocable
trust established pursuant to Section 12.1 or 12.2, as the case may be. The
Trustee shall apply the deposited cash or the U.S. Government Obligations,
together with earnings thereon in accordance with this Indenture and the
terms of the irrevocable trust agreement established pursuant to Section 12.1
or 12.2, as the case may be, to the payment of principal of, premium, if any,
and interest on the Notes. The cash or U.S. Government Obligations so held
in trust and deposited with the Trustee in compliance with Section 12.1 or
12.2, as the case may be, shall not be part of the trust estate under this
Indenture, but shall constitute a separate trust fund for the benefit of all
holders entitled thereto. Except as specifically provided herein, the Trustee
shall not be requested to invest any amounts held by it for the benefit of
the holders or pay interest on uninvested amounts to any holder.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.1 hereof or Section 12.2 hereof
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the holders of
outstanding Notes.
Section 6. REPAYMENT TO THE COMPANY; UNCLAIMED MONEY. Subject to
applicable laws governing escheat of such property, and upon termination of
the trust established pursuant to Section 12.1 hereof or 12.2 hereof, as the
case may be, the Trustee shall promptly pay to the Company upon written
request any excess cash or U.S. Government Obligations held by them.
Additionally, if amounts for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee shall, upon written
request, pay such amounts back to the Company forthwith. Thereafter, all
liability of the Trustee with respect to such amounts shall cease. 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 7. REINSTATEMENT. If the Trustee is unable to apply any
cash or U.S. Government Obligations in accordance with Section 12.1 or 12.2
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
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application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.1 or 12.2 until such time as the Trustee is permitted to apply all
such cash or U.S. Government Obligations in accordance with Section 12.1 or
12.2, as the case may be; provided that if the Company makes any payment of
principal of, premium, if any, or interest on any Notes following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the holders of such Notes to receive such payment from the amounts
held by the Trustee.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of, or premium, if any, or
interest on any Note, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any supplemental indenture or in any
Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor entity,
either irectly or through the Company or any successor entity, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issuance
of the Notes.
ARTICLE XIV
CONVERSION OF NOTES
Section 1. RIGHT TO CONVERT. Subject to and upon compliance
with the provisions of this Indenture, the holder of any Note shall have the
right, at the option of such holder, at any time after 60 days following the
latest date of original issuance of the Notes and prior to the close of
business on August 15, 2003 (except that, with respect to any Note or portion
of a Note that shall be called for redemption or delivered for repurchase,
such right shall terminate, except as provided in the fourth paragraph of
Section 14.2, immediately prior to the close of business on the date fixed
for redemption of such Note or portion of a Note unless the Company shall
default in payment due upon redemption thereof) to convert the principal
amount of any
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such Note, or any portion of such principal amount that is $1,000 or an
integral multiple thereof, into that number of fully paid and nonassessable
shares of Common Stock (as such shares shall then be constituted) obtained by
dividing the aggregate principal amount of the Notes or portion thereof
surrendered for conversion by the Conversion Price in effect at such time
rounded to the nearest 1/100,000th of a share (with .0000005 being rolled
upward), by surrender of the Note so to be converted in whole or in part in
the manner provided in Section 14.2. A holder of Notes is not entitled to
any rights of a holder of Common Stock until such holder has converted such
holder's Notes to Common Stock and only to the extent such Notes are deemed
to have been converted to Common Stock under this Article XIV.
Section 2. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF
COMMON STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In
order to exercise the conversion privilege with respect to any Note in
definitive form, the holder of any such Note to be converted in whole or in
part shall surrender such Note, duly endorsed, at an office or agency
maintained by the Company pursuant to Section 4.2, accompanied by the funds,
if any, required by the penultimate paragraph of this Section 14.2, and shall
give written notice of conversion in the form provided on the form of Note
(or such other notice that is acceptable to the Company) to the office or
agency that the holder elects to convert such Note or the portion thereof
specified in said notice. Such notice shall also state the name or names
(with address) in which the certificate or certificates for shares of Common
Stock that shall be issuable on such conversion shall be issued and shall be
accompanied by transfer taxes, if required pursuant to Section 14.7. Each
such Note surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the name of the holder of such Note as it
appears on the Note register, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to any
interest in a global Note, the beneficial holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program and follow the other procedures set forth in
such program.
As promptly as practicable after satisfaction of the requirements
for conversion set forth above, subject to compliance with any restrictions
on transfer if shares issuable on conversion are to be issued in a name other
than that of the Noteholder (as if such transfer were a transfer of the Note
or Notes (or portion thereof) so converted), the Company shall issue
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and shall deliver to such holder at the office or agency maintained by the
Company for such purpose pursuant to Section 4.2, a certificate or
certificates for the number of full shares issuable upon the conversion of
such Note or portion thereof in accordance with the provisions of this
Article XIV and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion, as provided
in Section 14.3. In case any Note of a denomination greater than $1,000 shall
be surrendered for partial conversion, and subject to Section 2.3, the
Company shall execute and the Trustee shall authenticate and make available
for delivery to the holder of the Note so surrendered, without charge to him,
a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any
such Note (or portion thereof) on the date on which the requirements set
forth above in this Section 14.2 have been satisfied as to such Note (or
portion thereof), and the person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the holder of record
of the shares represented thereby; provided that any such surrender on any
date when the stock transfer books of the Company shall be closed shall
constitute the person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Note shall have been
surrendered.
Any Note or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date through the opening of business on the next succeeding interest payment
date shall (unless such Note or portion thereof being converted shall have
been called for redemption on a date during the period from the close of
business on or after any record date to the close of business on the business
day following the corresponding payment date) be accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such interest payment date on the principal amount being
converted; provided that no such payment need be made if there shall exist at
the time of conversion a default in the payment of interest on the Notes. An
amount equal to such payment shall be paid by the Company on such interest
payment date to the holder of such Note at the close of business on such
record date; provided that if the Company shall default in the payment of
interest on such interest payment date, such amount shall be paid to the
person who made such required payment. The interest payment with
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respect to a Note called for redemption on a date during the period from the
close of business on or after any record date to the close of business on the
business day following the corresponding payment date shall be payable on the
corresponding interest payment date to the registered Holder at the close of
business on that record date (notwithstanding the conversion of such Note
before the corresponding interest payment date) and a Holder who elects to
convert need not include funds equal to the interest paid. Except as
provided above in this Section 14.2, no adjustment shall be made for interest
accrued on any Note converted or for dividends on any shares issued upon the
conversion of such Note as provided in this Article XIV.
Upon the conversion of an interest in a global Note, the Trustee,
or the Custodian at the direction of the Trustee, shall make a notation on
such global Note as to the reduction in the principal amount represented
thereby.
Section 3. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. No
fractional shares of Common Stock or scrip representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of
fully paid and non-assessable shares of Common Stock issuable upon conversion
of a Note shall be determined by dividing the aggregate principal amount of
the Note or portion thereof surrendered for conversion by the Conversion
Price in effect at such time. The aggregate number of shares of Common Stock
issuable upon conversion shall be rounded to the nearest 1/100,000th of a
share (with .0000005 being rolled upward). If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment therefor in cash at the current market value thereof. The
current market value of a share of Common Stock shall be determined by
multiplying the fractional share by the Closing Price on the Trading Day
immediately preceding the date on which the Notes (or specified portions
thereof) are deemed to have been converted.
Section 4. CONVERSION PRICE. The Conversion Price shall be as
specified in the forms of Notes (herein called the "Conversion Price")
attached as Exhibits A, B and C hereto, subject to adjustment as provided in
this Article XIV.
Section 5. ADJUSTMENT OF CONVERSION PRICE. The Conversion
Price shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its
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Common Stock, (ii) subdivide or split its outstanding Common Stock into a
greater number of shares, (iii) combine its outstanding Common Stock
into a smaller number of shares or (iv) issue any shares of capital
stock by reclassification of its Common Stock, the conversion price in
effect immediately prior thereto shall be adjusted so that the Holder of
any Notes thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the Company which such
Holder would have owned or have been entitled to receive after the
occurrence of any of the events described above had such Notes been
surrendered for conversion immediately prior to the occurrence of such
event or the record date therefor, which is earlier. An adjustment made
pursuant to this subsection (a) shall become effective immediately after
the close of business on the record date for determination of
stockholders entitled to receive such dividend or distribution in the
case of a dividend or distribution and shall become effective
immediately after the close (except as provided in Section 14.5(k)) of
business on the effective date in the case of a subdivision, split,
combination or reclassification. Any shares of Common Stock issuable in
payment of a dividend shall be deemed to have been issued immediately
prior to the close of business on the record date for such dividend for
purposes of calculating the number of outstanding shares of Common Stock
under Sections 14.5(b) and (c).
(b) In case the Company shall issue rights, options or
warrants to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 45 days after the date
fixed for determination of stockholders entitled to receive such rights,
options or warrants) to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price (as defined in
Section 14.5(g)) on the Record Date fixed for determination of
stockholders entitled to receive such rights, options or warrants, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect at the
opening of business on the date after the Record Date by a fraction the
numerator of which shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date plus the number
of shares that the aggregate offering price of the total number of
shares so offered would purchase at such Current Market Price, and the
denominator of which shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the total
number of additional shares of Common Stock so offered for subscription
or purchase. Such adjustment shall become effective
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immediately after the opening of business on the day following the Record
Date fixed for determination of stockholders entitled to receive such
rights, options or warrants. To the extent that shares of Common Stock
are not delivered after the expiration or termination of such rights,
options or warrants, the Conversion Price shall be readjusted to the
Conversion Price that would then be in effect had the adjustments made
upon the issuance of such rights, options or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights, options or warrants are not
so issued, the Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights, options
or warrants had not been fixed. In determining whether any rights,
options or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such
rights, options or warrants, the value of such consideration, if other
than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Conversion Price in effect at the opening of business on the
day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any dividends or distributions
to which Section 14.5(a) applies) or evidences of its indebtedness or
assets (including securities, but excluding any rights, options or
warrants referred to in Section 14.5(b), and excluding any dividend or
distribution (x) in connection with the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, (y)
exclusively in cash or (z) referred to in
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Section 14.5(a) (any of the foregoing hereinafter in this Section 14.5(d)
called the "Securities")), then, in each such case, the Conversion Price
shall be reduced so that the same shall be equal to the price determined
by multiplying the Conversion Price in effect immediately prior to the
close of business on the Record Date (as defined in Section 14.5(g))
with respect to such distribution by a fraction of which the numerator
shall be the Current Market Price (determined as provided in Section
14.5(g)) on such date less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the
Securities so distributed applicable to one share of Common Stock and
the denominator shall be such Current Market Price, such reduction to
become effective immediately prior to the opening of business on the day
following the Record Date; provided that in the event the then fair
market value (as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion the amount of
Securities such holder would have received had such holder converted
each Note on such date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to
be the Conversion Price that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of
this Section 14.5(d) by reference to the actual or when issued trading
market for any securities comprising all or part of such distribution,
it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price pursuant to Section
14.5(g) to the extent possible.
Notwithstanding the foregoing provisions of this Section 14.5(d), no
adjustment shall be made hereunder for any distribution of Securities if
the Company makes proper provision so that each Noteholder who converts a
Note (or any portion thereof) after the date fixed for determination of
stockholders entitled to receive such distribution shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion, the amount and kind of Securities that such
holder would have been entitled to receive if such holder had, immediately
prior to such determination date, converted such Note into Common Stock;
provided that, with respect to any Securities
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that are convertible, exchangeable or exercisable, the foregoing provision
shall only apply to the extent (and so long as) the Securities receivable
upon conversion of such Note would be convertible, exchangeable or
exercisable, as applicable, without any loss of rights or privileges for a
period of at least 60 days following conversion of such Note.
Rights, options or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's capital stock (either initially or under
certain circumstances), which rights, options or warrants, until the
occurrence of a specified event or events (the "Trigger Event") (i) are
deemed to be transferred with such shares of Common Stock, (ii) are not
exercisable and (iii) are also issued in respect of future issuances of
Common Stock, shall not be deemed distributed for purposes of this Section
14.5(d) (and no adjustment to the Conversion Price under Section 14.5(d)
shall be required) until the occurrence of the earliest Trigger Event. In
addition, in the event of any distribution of rights, options or warrants, or
any Trigger Event with respect thereto, that shall have resulted in an
adjustment to the Conversion Price under this Section 14.5(d), (1) in the
case of any such rights, options or warrants that shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or repurchase
to give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such
rights, options or warrants (assuming such holder had retained such rights,
options or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and (2) in the case of such rights, options or
warrants all of which shall have expired or been terminated without exercise
by any holder thereof, the Conversion Price shall be readjusted as if such
issuance had not occurred.
For purposes of this Section 14.5(d) and Sections 14.5(a) and (b),
any dividend or distribution to which this Section 14.5(d) is applicable that
also includes shares of Common Stock, or rights, options or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other than such shares of
Common Stock or rights, options or warrants (and any Conversion Price
reduction required by
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this Section 14.5(d) with respect to such dividend or distribution shall then
be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights, options or warrants (and any further
Conversion Price reduction required by Sections 14.5(a) and (b) with respect
to such dividend or distribution shall then be made) except (A) the Record
Date of such dividend or distribution shall be substituted as "the date fixed
for the determination of stockholders entitled to receive such dividend or
other distribution" and "the date fixed for such determination" within the
meaning of Sections 14.5(a) and (b) and (B) any shares of Common Stock
included in such dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such determination" within the
meaning of Section 14.5(a).
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section 14.6
applies or as part of a distribution referred to in Section 14.5(d) for
which an adjustment to the Conversion Price is provided therein) in an
aggregate amount that, combined together with (1) the aggregate amount
of any other such distributions to all holders of its Common Stock made
exclusively in cash within the 12 months preceding the date of payment
of such distribution, and in respect of which no adjustment pursuant to
this Section 14.5(e) has been made, and (2) the aggregate of any cash
plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution) of consideration payable in respect of any tender offer, by
the Company or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of such distribution, and in respect of which no adjustment
pursuant to Section 14.5(f) has been made, exceeds 20.0% of the product
of the Current Market Price (determined as provided in Section 14.5(g))
on the Record Date with respect to such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date, unless the
Company elects to reserve such cash for distribution to the holders of
the Notes upon the conversion of the Notes so that any such holder
converting Notes shall receive upon such conversion, in addition to the
shares of Common Stock to that such holder is entitled, the amount of
cash which such holder would have received if such holder had,
immediately prior to the Record Date for such distribution of cash,
converted its Notes into Common Stock,
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the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on such date by a fraction (i) the
numerator of which shall be equal to the Current Market Price on the
Record Date less an amount equal to the quotient of (x) the excess of
such combined amount over such 20.0% and (y) the number of shares of
Common Stock outstanding on the Record Date and (ii) the denominator of
which shall be equal to the Current Market Price on such date; provided
that in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder
shall have the right to receive upon conversion the amount of cash such
holder would have received had such holder converted each Note on the
Record Date. In the event that such dividend or distribution is not so
paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such dividend or
distribution had not been declared.
(f) In case a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that combined together
with (1) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of
such tender offer, of consideration payable in respect of any other
tender offer, by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer, and in respect of which no adjustment
pursuant to Section 14.5(f) has been made, and (2) the aggregate amount
of any distributions to all holders of the Company's Common Stock made
exclusively in cash within 12 months preceding the expiration of such
tender offer, and in respect of which no adjustment pursuant to Section
14.5 (e) has been made, exceeds 20.0% of the product of the Current
Market Price (determined as provided in Section 14.5(g)) as of the last
time (the "Expiration Time") tenders could have
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been made pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of the
Expiration Time, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to close of business on the date of the
Expiration Time by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based
on the acceptance (up to any maximum specified in the terms of the
tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares)
on the Expiration Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Expiration Time, such reduction
to become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event that the Company is
obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any
such purchases or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price that would then be in
effect if such tender offer had not been made.
(g) For purposes of this Section 14.5, the following terms shall
have the meaning indicated:
(1) "Closing Price" with respect to any securities
on any day shall mean the closing sale price regular way on such
day or, in case no such sale takes place on such day, the average
of the reported closing bid and
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asked prices, regular way, in each case on the New York Stock
Exchange, or, if such security is not listed or admitted to trading
on such Exchange, on the principal national security exchange or
quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or quotation system, the
average of the closing bid and asked prices of such security on the
over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similar generally
accepted reporting service, or if not so available, in such manner
as furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution.
(2) "Current Market Price" shall mean the average of the
daily Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided that (1) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or distribution or
Change of Control requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section 14.5(a),
(b), (c), (d), (e) or (f) occurs during such ten consecutive
Trading Days, the Closing Price for each Trading Day prior to the
"ex" date for such other event shall be adjusted by multiplying
such Closing Price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other
event, (2) if the "ex" date for any event (other than the
issuance, distribution or Change of Control requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 14.5(a), (b), (c), (d), (e) or (f) occurs on
or after the "ex" date for the issuance or distribution requiring
such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Price by
the reciprocal of the fraction by which the Conversion Price is so
required to be adjusted as a result of such other event and (3) if
the "ex" date for the issuance, distribution or Change of Control
requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (1)
or (2) of this proviso, the Closing Price for each Trading Day on
or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value (as determined by the
Board of Directors in a manner consistent with any determination
of such value for purposes of Section 14.5(d) or (f), whose
determination shall be conclusive and described in a Board
Resolution) of the evidences of indebtedness, shares of capital
stock or
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assets being distributed applicable to one share of Common Stock as
of the close of business on the day before such "ex" date. For
purposes of any computation under Section 14.5(f), the Current Market
Price of the Common Stock on any date shall be deemed to be the
average of the daily Closing Prices per share of Common Stock for
such day and the next two succeeding Trading Days; provided that if
the "ex" date for any event (other than the tender or exchange offer
requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 14.5(a), (b), (c), (d), (e)
or (f) occurs on or after the Expiration Time for the tender or
exchange offer requiring such computation and prior to the day in
question, the Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such
other event. For purposes of this paragraph, the term "ex" date,
(1) when used with respect to any issuance or distribution, means
the first date on which the Common Stock trades regular way on the
relevant exchange or in the relevant market from which the Closing
Price was obtained without the right to receive such issuance or
distribution, (2) when used with respect to any subdivision or
combination of shares of Common Stock, means the first date on
which the Common Stock trades regular way on such exchange or in
such market after the time at which such subdivision or
combination becomes effective and (3) when used with respect to
any tender or exchange offer means the first date on which the
Common Stock trades regular way on such exchange or in such market
after the expiration of such offer. Notwithstanding the
foregoing, whenever successive adjustments to the Conversion Price
are called for pursuant to this Section 14.5, such adjustments
shall be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 14.5 and to
avoid unjust or inequitable results as determined in good faith by
the Board of Directors.
(3) "fair market value" shall mean the amount that a
willing buyer would pay a willing seller in an arm's-length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to
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receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national security exchange, a day on
which the New York Stock Exchange or such other national
security exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market, a
day on which trades may be made thereon or (z) if the
applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on
which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 14.5(a), (b), (c),
(d), (e) and (f), as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or
from any event treated as such for income tax purposes. To the
extent permitted by applicable law, the Company from time to time
may reduce the Conversion Price by any amount for any period of
time if the period is at least 20 days, the reduction is
irrevocable during the period and the Board of Directors shall have
made a determination that such reduction would be in the best
interests of the Company, which determination shall be conclusive
and described in a Board Resolution. Whenever the Conversion Price
is reduced pursuant to the preceding sentence, the Company shall
mail to all holders of record of the Notes a notice of the
reduction at least 15 days prior to the date the reduced Conversion
Price takes effect, and such notice shall state the reduced
Conversion Price and the period it shall be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided that any adjustments that by
reason of this Section 14.5(i) are not
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required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article
XIV shall be made by the Company and shall be made to the nearest
1/100,000th (with 0.0000005 being rolled upward).
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or
interest.
No adjustment need be made for a change in the par value, or
to or from no par value, of the Common Stock.
To the extent the Notes become convertible into cash, assets,
property or securities (other than Common Stock of the Company), no
adjustment need be made thereafter as to the cash, assets, property
or such securities (except as such securities may otherwise by
their terms provide), and interest shall not accrue on such cash.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the date on
which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Price to the holder of each
Note at his last address appearing on the Note register provided
for in Section 2.5, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) In any case in which this Section 14.5 provides that an
adjustment shall become effective immediately after a Record Date
for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of any Note converted after such
Record Date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 14.3.
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Section 6. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any of the following events occur, namely (i) any reclassification
or change of outstanding shares of Common Stock (other than a change in par
value, or to or from no par value, as a result of a subdivision or
combination), (ii) any consolidation, merger or combination of the Company
with another corporation as a result of which holders of Common Stock shall
be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock or
(iii) any sale or conveyance of the properties and assets of the Company as,
or substantially as, an entirety (determined on a consolidated basis) to any
other corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, then the Company
or the successor or purchasing corporation, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture if such supplemental indenture is then required to so comply)
providing that the Notes shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert
all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance, assuming such holder
of Common Stock did not exercise his rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance (provided that, if the kind or amount of securities, cash or other
property receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance is not the same for each share of
Common Stock in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purposes of this Section 14.6
the kind and amount of securities, cash or other property receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance for each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing shares).
Such supplemental indenture shall provide for adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article XIV.
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The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at his address
appearing on the Note register provided for in Section 2.5, within 20 days
after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture.
The above provisions of this Section 14.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
Section 7. TAXES ON SHARES ISSUED. The issuance of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any transfer or similar tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax that may
be payable in respect of any transfer involved in the issue and delivery of
stock in any name other than that of the holder of any Note converted, and
the Company shall not be required to issue or deliver any such stock
certificate unless and until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
Section 8. RESERVATION OF SHARES; SHARES TO BE FULLY PAID; LISTING
OF COMMON STOCK. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient
shares to provide for the conversion of the Notes from time to time as such
Notes are presented for conversion.
Before taking any action that would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Notes, the Company shall take
all corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of such Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Notes shall, upon issuance, be fully paid and
nonassessable by the Company and free from all taxes, liens and charges with
respect to the issuance thereof.
The Company further covenants that it shall, if permitted by the
rules of Nasdaq National Market, list and keep listed, so long as the Common
Stock shall be so listed on such exchanges, all Common Stock issuable upon
conversion of the Notes.
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Section 9. RESPONSIBILITY OF TRUSTEE. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine whether any facts exist that may require any
adjustment of the Conversion Price, or with respect to the nature or extent
or calculation 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 any other conversion agent
shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property,
that may at any time be issued or delivered upon the conversion of any Note;
and the Trustee and any other conversion agent make no representations with
respect thereto. Subject to the provisions of Section 7.1, neither the
Trustee nor any conversion agent shall 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 or cash upon the surrender of
any debenture for the purpose of conversion or to comply with any of the
duties, responsibilities or covenants of the Company contained in this
Article XIV. Without limiting the generality of the foregoing, neither the
Trustee nor any conversion agent shall be under any responsibility to
determine whether a supplemental indenture under Section 14.6 hereof need to
be entered into or the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 14.6 relating either
to the kind or amount of shares of stock or securities or property (including
cash) receivable by Noteholders upon the conversion of their Notes after any
event referred to in such Section 14.6 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.1, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall
be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In case:
(a) the Company makes any distribution or dividend that would
require an adjustment in the Conversion Price pursuant to Section
14.5; or
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 14.6; or
(c) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
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the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register, as promptly as
possible but in any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record date
is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined or (y) the
date on which such reclassification, change, consolidation, merger, sale,
conveyance, transfer, dissolution, liquidation or winding-up is expected to
become effective or occur and the date as of which it is expected that
holders of record of Common Stock shall be entitled to exchange their Common
Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance, transfer,
dissolution, liquidation or winding-up. Neither the failure to give such
notice nor any defect therein shall affect the legality or validity of the
proceedings referenced in clauses (a) through (c) of this Section 14.10.
ARTICLE XV
SUBORDINATION
Section 1. AGREEMENT TO SUBORDINATE. The Company agrees, and each
Noteholder by accepting a Note agrees, that the indebtedness evidenced by the
Notes and the payment of the principal of (and premium, if any, on) and
interest on the Notes or the purchase of any of the foregoing, and all
redemptions of and distributions and other payments to be made in respect of
Common Stock received upon the conversion of any Note, is expressly made
subordinated and subject in right of payment, to the extent and in the manner
provided in this Article XV, to the prior payment in full of all Senior
Indebtedness (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed) and that the subordination is for the
benefit of the holders of Senior Indebtedness. This Article XV shall
constitute a continuing offer to all persons who become holders of, or
continue to hold, Senior Indebtedness, and such provisions are made for the
benefit of the holders of Senior Indebtedness.
Section 2. CERTAIN DEFINITIONS. For purposes of this Article XV,
the following terms shall have the meaning indicated:
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(1) "Representative" shall mean the indenture trustee or
other trustee, agent or representative for any Senior Indebtedness
or the Person to whom such Senior Indebtedness is owing, if there
is no such trustee, agent or representative for such Senior
Indebtedness.
(2) "Senior Indebtedness" with respect to the Notes means the
principal of, premium, if any, and interest on, and any fees,
costs, expenses and any other amounts (including indemnity
payments) related to the following, whether outstanding on the date
hereof or hereafter incurred or created, assumed or guaranteed: (a)
indebtedness, matured or unmatured, whether or not contingent, of
the Company for money borrowed evidenced by notes or other written
obligations, (b) any interest rate contract, interest rate swap
agreement or other similar agreement or arrangement designed to
protect the Company or any of its subsidiaries against fluctuations
in interest rates, (c) indebtedness, matured or unmatured, whether
or not contingent, of the Company evidenced by notes, debentures,
bonds or similar instruments or letters of credit (or reimbursement
agreements in respect thereof), (d) obligations of the Company as
lessee under capitalized leases and under leases of property made
as part of any sale and leaseback transactions, (e) indebtedness of
others of any of the kinds described in the preceding clauses (a)
through (d) assumed or guaranteed by the Company including but not
limited to all indebtedness at any time outstanding under the
Credit Facilities, assumed or guaranteed by the Company and (f)
renewals, extensions, modifications, amendments, and refundings of,
and indebtedness and obligations of a successor person issued in
exchange for or in replacement of, indebtedness or obligations of
the kinds described in the preceding clauses (a) through (f),
provided that the following shall not constitute Senior
Indebtedness: (i) any indebtedness or obligation of the Company in
respect of the Notes, (ii) any indebtedness of the Company to any
of its subsidiaries or other Affiliates; (iii) any indebtedness
described in clauses (a) through (f) ranking PARI PASSU with or
subordinate to the Notes pursuant to the terms of the instrument
creating or evidencing such indebtedness; and (iv) any indebtedness
incurred for the purchase of goods or materials in the ordinary
course of business (for purposes of this clause (iv) only, the
phrase "ordinary course of business" shall not be deemed to include
one-time or non-recurring purchases of capital goods).
For the purposes of this Indenture, Senior Indebtedness shall not
be deemed to have been paid in full until the holders
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of the Senior Indebtedness shall have indefeasibly received payment in full
in cash of all Senior Indebtedness; provided that if any holder of Senior
Indebtedness agrees to accept payment in full of such Senior Indebtedness for
consideration other than cash, such holder shall be deemed to have
indefeasibly received payment in full of such Senior Indebtedness. The
provisions of this Article XV shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Senior Indebtedness is rescinded or must otherwise be returned by any holder
of Senior Indebtedness upon the insolvency, bankruptcy or organization of the
Company or otherwise, all as though such payment had not been made.
A distribution may consist of cash, securities or other property,
by set-off or otherwise.
Section 3. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any
distribution to creditors of the Company in a liquidation or dissolution of
the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, in an assignment
for the benefit of creditors or any marshalling of the Company's assets and
liabilities, (a) holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due thereon before
Noteholders shall be entitled to receive any payment upon or in respect of
the Notes (except that Noteholders may receive securities that are
subordinated to at least the same extent as the Notes to Senior Indebtedness
and any securities issued in exchange for Senior Indebtedness) and (b) until
all Senior Indebtedness (as provided in clause (a) above) is paid in full,
any distribution to which Noteholders would be entitled but for this Article
shall be made to holders of Senior Indebtedness (except that Noteholders may
receive securities that are subordinated to at least the same extent as the
Notes to (x) Senior Indebtedness and (y) any securities issued in exchange
for Senior Indebtedness), as their interests may appear.
Section 4. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not
make any payment upon or in respect of the Notes (except in such subordinated
securities) and may not acquire from the Trustee or any Noteholder any Note
for cash or property (other than securities that are subordinated to at least
the same extent as the Notes to (i) Senior Indebtedness and (ii) any
securities issued in exchange for Senior Indebtedness) until all Senior
Indebtedness has been paid in full if:
(a) a default in the payment of the principal of, premium, if
any, or interest on Senior Indebtedness occurs and is continuing
beyond any applicable period
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of grace in the agreement, indenture, or other document governing
the Senior Indebtedness; or
(b) a default, other than a default referred to in
subparagraph (a) above, on Senior Indebtedness occurs and is
continuing that permits holders of the Senior Indebtedness as to
which such default relates to accelerate its maturity and the
Trustee receives a notice of the default (a "Payment Blockage
Notice") from the Representative of holder(s) of any Senior
Indebtedness then outstanding. No default specified in this
subparagraph (b) that existed or was continuing on the date of
delivery of any such Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage Notice
unless such default shall have been cured or waived for a period of
not less than 180 days.
The Company may and shall resume payments on and distributions in
respect of the Notes and may acquire them upon the earlier of:
(i) in the case of a default referred to in Section 15.4(a)
hereof, upon the date on which the default is cured or waived, or
(ii) in the case of a default referred to in Section 15.4(b)
hereof, 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of such Senior
Indebtedness has been accelerated. No new period of payment
blockage may be commenced within 360 days after the receipt by the
Trustee of any prior Payment Blockage Notice,
if, AND ONLY IF, this Article XV otherwise permits the payment, distribution
or acquisition at the time of such payment or acquisition.
Section 5. WHEN DISTRIBUTION MUST BE PAID OVER. In the event that
the Trustee (or paying agent if other than the Trustee) or any Noteholder (or
any holder of Common Stock received upon the conversion of any Note) receives
any payment of principal or interest with respect to the Notes at a time when
such payment is prohibited by Section 15.3 or 15.4 hereof, such payment shall
be held by the Trustee (or paying agent if other than the Trustee) or such
Noteholder, in trust for the benefit of, and immediately shall be paid over
and delivered, upon written request, to, the holders of Senior Indebtedness
as their interests may appear or their Representative under the indenture
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or other agreement (if any) pursuant to which Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or
on behalf of Noteholders or the Company or any other person money or assets
to which any holders of Senior Indebtedness shall be entitled by virtue of
this Article XV, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
Section 6. NOTICE BY COMPANY. The Company shall promptly notify
the Trustee and the paying agent of any facts known to the Company that would
cause a payment of any principal or interest with respect to the Notes to
violate this Article XV, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness as provided in this
Article XV.
Section 7. SUBROGATION. After all Senior Indebtedness is paid in
full and until the Notes are paid in full, Noteholders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes)
to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise
payable to the Noteholders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article XV to holders of Senior
Indebtedness that otherwise would have been made to Noteholders is not, as
between the Company and Noteholders, a payment by the Company on the Notes.
Section 8. RELATIVE RIGHTS. This Article XV defines the relative
rights of Noteholders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(a) impair, as between the Company and the Noteholders, the
obligation of the Company, which is absolute and
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unconditional, to pay principal of, premium, if any, and
interest on the Notes in accordance with their terms;
(b) affect the relative rights of Noteholders and creditors
of the Company other than their rights in relation to holders of
Senior Indebtedness; or
(c) prevent the Trustee or any Noteholder from exercising its
available remedies upon a default or Event of Default, subject to
the rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Noteholders.
If the Company fails because of this Article XV to pay principal
of, premium, if any, or interest on a Note on the due date, the failure is
still a default or Event of Default.
Section 9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. (a) No
right of any holder of Senior Indebtedness to enforce the subordination of
the indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the Company or any holder of Notes or by the failure of the
Company or any holder of Notes to comply with this Indenture.
(b) Without in any way limiting the generality of the preceding
paragraph of this Section, the holders of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the Trustee
or the Noteholders, without incurring responsibility to the Noteholders and
without impairing or releasing the subordination or other benefits provided
in this Article XV, or the obligations hereunder of the Noteholders to the
holders of Senior Indebtedness, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment
of, or renew, exchange, amend, increase or alter, Senior Indebtedness or the
term of any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or any liability of any obligor thereon
(unless such change, extension or alteration results in such indebtedness no
longer being Senior Indebtedness as defined in this Indenture); (2) sell
Senior Indebtedness; (3) settle or compromise any Senior Indebtedness or any
liability of any obligor thereon or release any Person liable in any manner
for the collection of Senior Indebtedness; and (4) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to
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holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee and the Noteholders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other person making any distribution to the Trustee or to the
Noteholders 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 XV.
Section 11. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
the provisions of this Article XV or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment or distribution by the Trustee,
and the Trustee and the paying agent may continue to make payments on the
Notes, unless the Trustee shall have received at its Corporate Trust Office
at least three Business Days prior to the date of such payment written notice
of facts that would cause the payment of any principal, premium, if any, and
interest with respect to the Notes to violate this Article XV. Only the
Company or a Representative may give the notice. Nothing in this Article XV
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.6 hereof.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing such person to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish
that such notice has been given by a holder of Senior Indebtedness (or a
trustee or agent on behalf of any such holder). In the event that the
Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of
such person under this Article XV, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the
benefit of such person pursuant to the
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terms of this Indenture pending judicial determination as to the rights of
such person to receive such payment.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
paying agent, any authenticating agent, any conversion agent, any Note
registrar and their successors may do the same with like rights.
Section 12. AUTHORIZATION TO EFFECT SUBORDINATION. Each holder of
a Note by the holder's acceptance thereof authorizes and directs the Trustee
on the holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article XV and appoints
the Trustee to act as the holder's attorney-in-fact for any and all such
purposes. Without limiting the foregoing, each Representative is hereby
irrevocably authorized and empowered (in its own name or in the name of the
Noteholders or the Trustee or otherwise), but shall have no obligation, to
demand, xxx for, collect and receive every payment or distribution referred
to in Section 15.3 above and give acquittance therefor and to file claims and
proofs of claim and take such other action as it may deem necessary or
advisable for the exercise or enforcement of any of the rights or interests
of the holders or owners of the Senior Indebtedness hereunder; provided that
for purposes of this Section 15.12 holders or owners of Senior Indebtedness
may act only through such Representative.
Section 13. CONVERSIONS NOT DEEMED PAYMENT. For the purposes of
this Article XV only, the issuance and delivery of Common Stock upon
conversion of the Notes in accordance with Article XIV shall not be deemed to
constitute a payment or distribution on account of the principal of or
interest on the Notes or on account of the purchase or other acquisition of
Notes. Nothing contained in this Article or elsewhere in this Indenture or
in the Notes is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the holders, the
right, which is absolute and unconditional, of the holder of any Note to
convert such Note in accordance with Article XIV.
Section 14. AUTHORIZATION TO EFFECT SUBORDINATION. Each
Noteholder by the acceptance of a Note authorizes and directs the Trustee on
the Noteholder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XV
and to protect the rights of the Noteholders pursuant to this Indenture, and
appoints the Trustee to act as the Noteholder's attorney-in-fact for any and
all such purposes, including, in the event of any
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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 of the Company), the making of a
timely filing of a claim for the unpaid balance of the Notes in the form
required in said proceedings and cause said claim to be approved. If the
Trustee does not file a proper proof of 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, any Representative is hereby authorized to
file an appropriate claim for and on behalf of the Noteholders. Nothing
herein contained shall be deemed to authorize the Trustee or any holders of
Senior Indebtedness or any Representative to authorize or consent to or
accept or adopt on behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of
any Noteholder, or to authorize the Trustee or the holders of Senior
Indebtedness or any Representative to vote in respect of the claim of any
Noteholder in any such proceeding.
Section 15. ACCELERATION OF NOTES. If payment of the Notes is
accelerated because of any Event of Default, the Company shall promptly
notify holders of Senior Indebtedness of the acceleration.
Section 16. AMENDMENTS. The provisions of this Article XV shall
not be amended or modified without the written consent of the holders of all
Senior Indebtedness in accordance with the terms thereof.
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ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 1. POOLING OF INTERESTS. The Company desires to preserve
its ability to account for acquisition and other business combination
transactions using the pooling-of-interests method where appropriate, and the
provisions of this Indenture shall be interpreted accordingly.
Section 2. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements in this Indenture made by
the Company shall bind its successors and assigns whether so expressed or not.
Section 3. OFFICIAL ACTS BY SUCCESSOR COMPANY. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board (including the Board of Directors), committee
or officer of the Company shall and may be done and performed with like force
and effect by the like board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
Section 4. ADDRESSES FOR NOTICES, ETC. Any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be
deemed to have been sufficiently given or made, for all purposes if given or
served by being sent by prepaid overnight delivery or being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee) to Rac
Financial Group, Inc., 0000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000,
Attention: Chief Financial Officer with a copy to Xxxxxx X. Xxxxxxxx, Esq.,
Jenkens & Xxxxxxxxx, 0000 Xxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000. Any
notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given
or served by being sent by prepaid overnight delivery or being deposited
postage prepaid by registered or certified mail in a post office letter box
addressed to the Corporate Trust Office of the Trustee, which office is, at
the date as of which this Indenture is dated, located at Bank One, Columbus,
N.A., 000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxx 00000-0000 Attention:
Corporate Trust Administration.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
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Any notice or communication mailed to a Noteholder shall be mailed
to him by first class mail, postage prepaid, at the address of such
Noteholder as it appears on the Note register and shall be sufficiently given
to such Noteholder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 5. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
the Notes. The Company, the Trustee, the Note registrar and any other person
shall have the protection of Trust Indenture Act Section 312(c).
Section 6. GOVERNING LAW. This Indenture and each Note shall be
deemed to be a contract made under the substantive laws of New York and for
all purposes shall be construed in accordance with the substantive laws of
New York without regard to conflicts of laws principles thereof.
Section 7. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT;
CERTIFICATES TO TRUSTEE. Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
including those actions set forth in Trust Indenture Act Section 314(c), the
Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with, and an Opinion of Counsel
stating that, in the Opinion of such Counsel, all such conditions precedent
have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that
the person making such certificate or opinion has read such covenant or
condition, (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based, (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (4) a statement as to whether or not,
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in the opinion of such person, such condition or covenant has been complied
with.
Section 8. LEGAL HOLIDAYS. In any case where any interest payment
date, date fixed for redemption, stated maturity or Change of Control
Purchase Date of any Note or the last date on which a Holder has the right to
convert his Notes shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of interest or
principal (and premium, if any) or conversion of the Notes need not be made
on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, date fixed for
redemption, Change of Control Purchase Date, or at the stated maturity, or on
such last day for conversion, provided that no interest shall accrue for the
period from and after such interest payment date, date fixed for redemption,
Change of Control Purchase Date or stated maturity, as the case may be.
Section 9. NO SECURITY INTEREST CREATED. Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation,
as now or hereafter enacted and in effect, in any jurisdiction where property
of the Company or its subsidiaries is located.
Section 10. TRUST INDENTURE ACT. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture
Act required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 11. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by
operation of the Trust Indenture Act, the imposed duties, upon qualification
of this Indenture under the Trust Indenture Act, shall control.
Section 12. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any person, other than the
parties hereto, any paying agent, any authenticating agent, any conversion
agent, any Note registrar and their successors hereunder and the holders of
Notes, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 13. TABLE OF CONTENTS, HEADINGS ETC. The table of contents
and the titles and headings of the articles and sections of this Indenture
have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall
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in no way modify or restrict any of the terms or provisions hereof.
Section 14. AUTHENTICATING AGENT. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf and
subject to its direction in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7 and 3.3, as
fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee" and a certificate
of authentication executed on behalf of the Trustee by an authenticating
agent shall be deemed to satisfy any requirement hereunder or in the Notes
for the Trustee's certificate of authentication. Such authenticating agent
shall at all times be a person eligible to serve as Trustee hereunder
pursuant to Section 7.10.
Any corporation into which any authenticating agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
authenticating agent shall be a party, or any corporation succeeding to the
corporate trust business of any authenticating agent, shall be the successor
of the authenticating agent hereunder, if such successor company is otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the parties hereto or the authenticating agent
or such successor company.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any authenticating agent shall cease to be eligible under this
Section, the Trustee shall promptly appoint a successor authenticating agent
(which may be the Trustee), shall give written notice of such appointment to
the Company and shall mail notice of such appointment to all holders of Notes
as the names and addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to
time reasonable compensation for its services.
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The provisions of Sections 7.3, 7.4, 7.5, 8.3 and this Section
16.14 shall be applicable to any authenticating agent.
Section 15. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
Bank One, Columbus, N.A. hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly signed and attested, all as of the date first written above.
RAC FINANCIAL GROUP, INC.
By:_______________________________________
Name:
Title:
Attest:
___________________________
BANK ONE, COLUMBUS, N.A.,
as Trustee
By:________________________________________
Name:
Title:
Attest:
___________________________
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
---------------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . . . . 7.9
(c). . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . 7.14
(b). . . . . . . . . . . . . . . . . . . . . 7.14
(c). . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . 2.5(a);5.1
(b). . . . . . . . . . . . . . . . . . . . . 16.5
(c). . . . . . . . . . . . . . . . . . . . . 16.5
313(a) . . . . . . . . . . . . . . . . . . . . 7.2
(b)(1) . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . 7.2
(c). . . . . . . . . . . . . . . . . . . . . 7.2
(d). . . . . . . . . . . . . . . . . . . . . 7.2
314(a) . . . . . . . . . . . . . . . . . . . . 4.8(a)
(b). . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . 16.7
(c)(2) . . . . . . . . . . . . . . . . . . . 16.7
(c)(3) . . . . . . . . . . . . . . . . . . . N.A.
(d). . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . 16.7
(f). . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b). . . . . . . . . . . . . . . . . . . . . 6.8
(c). . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d). . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e). . . . . . . . . . . . . . . . . . . . . 6.9
316(a)(last sentence). . . . . . . . . . . . . 8.4
(a)(1)(A). . . . . . . . . . . . . . . . . . 6.7
(a)(1)(B). . . . . . . . . . . . . . . . . . 6.7
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . 6.4
(c). . . . . . . . . . . . . . . . . . . . . 9.2
317(a) . . . . . . . . . . . . . . . . . . . . 6.2
(b). . . . . . . . . . . . . . . . . . . . . 4.4
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318(a) . . . . . . . . . . . . . . . . . . . . 16.10; 16.11
N.A. means Not applicable.
-------------
* This Cross-Reference Table is not part of the Indenture.
-ii-
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . . . 8
Section 1.3 Rules of Construction. . . . . . . . . . . . . . . . . . . 9
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes . . . . . . . . . . 9
Section 2.2 Form of Notes. . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.3 Date and Denomination of Notes; Payments
of Interest. . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.4 Execution of Notes . . . . . . . . . . . . . . . . . . . . 13
Section 2.5 Exchange and Registration of Transfer of
Notes; Restrictions on Transfer; Depositary. . . . . . . . 14
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . 25
Section 2.7 Temporary Notes. . . . . . . . . . . . . . . . . . . . . . 27
Section 2.8 Cancellation of Notes Paid, Etc. . . . . . . . . . . . . . 27
Section 2.9 CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices. . . . . . . . . . . . . . . . . . . . . 28
Section 3.2 Notice of Redemption; Selection of Notes . . . . . . . . . 28
Section 3.3 Payment of Notes Called for Redemption . . . . . . . . . . 30
Section 3.4 Conversion Arrangement on Call for
Redemption . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.5 Purchase of Notes Upon a Change of
Control. . . . . . . . . . . . . . . . . . . . . . . . . . 32
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ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 4.2 Maintenance of Office or Agency. . . . . . . . . . . . . . 34
Section 4.3 Appointments to Fill Vacancies in Trustee's Office . . . . 35
Section 4.4 Provisions as to Paying Agent. . . . . . . . . . . . . . . 35
Section 4.5 Corporate Existence. . . . . . . . . . . . . . . . . . . . 36
Section 4.6 Rule 144A Information Requirement. . . . . . . . . . . . . 37
Section 4.7 Stay, Extension and Usury Laws . . . . . . . . . . . . . . 37
Section 4.8 Compliance Statement; Notice of Defaults . . . . . . . . . 37
Section 4.9 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries . . . . . . . . . . . 38
Section 4.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.11 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE V
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY
Section 5.1 Noteholders' Lists . . . . . . . . . . . . . . . . . . . . 39
Section 5.2 Reports by Company . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. . . . . . . . . . . . . . . . . . . . . 40
Section 6.2 Payments of Notes on Default; Suit
Therefor . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.3 Application of Monies Collected by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 6.4 Proceedings by Noteholder. . . . . . . . . . . . . . . . . 46
Section 6.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . 47
Section 6.6 Remedies Cumulative and Continuing . . . . . . . . . . . . 47
Section 6.7 Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. . . . . . . . . . . . . . . . . . 48
Section 6.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . 48
Section 6.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . 48
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ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 Duties and Responsibilities of Trustee . . . . . . . . . . 49
Section 7.2 Reports by Trustee to Holders. . . . . . . . . . . . . . . 50
Section 7.3 Reliance on Documents, Opinions, Etc.. . . . . . . . . . . 50
Section 7.4 No Responsibility for Recitals, Etc. . . . . . . . . . . . 52
Section 7.5 Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes. . . . . . . . . . . . . . . . . . 52
Section 7.6 Monies to Be Held in Trust . . . . . . . . . . . . . . . . 52
Section 7.7 Compensation and Expenses of Trustee . . . . . . . . . . . 52
Section 7.8 Officers' Certificate as Evidence. . . . . . . . . . . . . 53
Section 7.9 Conflicting Interests of Trustee . . . . . . . . . . . . . 53
Section 7.10 Eligibility of Trustee . . . . . . . . . . . . . . . . . . 54
Section 7.11 Resignation or Removal of Trustee. . . . . . . . . . . . . 54
Section 7.12 Acceptance by Successor Trustee. . . . . . . . . . . . . . 55
Section 7.13 Successor, by Merger, Etc. . . . . . . . . . . . . . . . . 56
Section 7.14 Limitation on Rights of Trustee as
Creditor . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VIII
CONCERNING THE NOTEHOLDERS
Section 8.1 Action by Noteholders. . . . . . . . . . . . . . . . . . . 57
Section 8.2 Proof of Execution by Noteholders. . . . . . . . . . . . . 57
Section 8.3 Who Are Deemed Absolute Owners . . . . . . . . . . . . . . 57
Section 8.4 Company-Owned Notes Disregarded. . . . . . . . . . . . . . 58
Section 8.5 Revocation of Consents, Future Holders Bound . . . . 59
ARTICLE IX
NOTEHOLDERS' MEETINGS
Section 9.1 Purposes for Which Meetings May be Called. . . . . . . . . 59
Section 9.2 Manner of Calling Meetings; Record Date. . . . . . . . . . 59
Section 9.3 Call of Meeting by Company or Noteholders. . . . . . . . . 60
Section 9.4 Who May Attend and Vote at Meetings. . . . . . . . . . . . 60
Section 9.5 Manner of Voting at Meetings and Record to be Kept . . . . 60
Section 9.6 Exercise of Rights of Trustee and
Noteholders Not To Be Hindered or Delayed. . . . . . 61
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ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.1 Supplemental Indentures Without Consent of
Noteholders. . . . . . . . . . . . . . . . . . . . . . . 61
Section 10.2 Supplemental Indentures With Consent of
Noteholders. . . . . . . . . . . . . . . . . . . . . . . 63
Section 10.3 Effect of Supplemental Indentures . . . . . . . . . . . . 64
Section 10.4 Notation on Notes . . . . . . . . . . . . . . . . . . . . 64
Section 10.5 Evidence of Compliance of Supplemental Indenture
to Be Furnished Trustee. . . . . . . . . . . . . . . . . . 64
ARTICLE XI
CONSOLIDATION, MERGER, SALE, CONVEYANCE,
TRANSFER AND LEASE
Section 11.1 Company May Consolidate, Etc. on Certain Terms. . . . . . 65
Section 11.2 Successor Company To Be Substituted . . . . . . . . . . . 65
Section 11.3 Opinion of Counsel To Be Given to
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 12.1 Legal Defeasance and Covenant Defeasance of
the Notes. . . . . . . . . . . . . . . . . . . . . . . . 66
Section 12.2 Termination of Obligations upon Cancellation of the
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 12.3 Survival of Certain Obligations . . . . . . . . . . . . . 69
Section 12.4 Acknowledgment of Discharge by Trustee. . . . . . . . . . 69
Section 12.5 Application of Trust Assets . . . . . . . . . . . . . . . 70
Section 12.6 Repayment to the Company; Unclaimed Money . . . . . . . . 70
Section 12.7 Reinstatement . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 13.1 Indenture and Notes Solely Corporate
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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ARTICLE XIV
CONVERSION OF NOTES
Section 14.1 Right to Convert. . . . . . . . . . . . . . . . . . . . . 71
Section 14.2 Exercise of Conversion Privilege; Issuance of
Common Stock on Conversion; No Adjustment for Interest
or Dividends. . . . . . . . . . . . . . . . . . . . . . . 72
Section 14.3 Cash Payments in Lieu of Fractional Shares. . . . . . . . 74
Section 14.4 Conversion Price. . . . . . . . . . . . . . . . . . . . . 74
Section 14.5 Adjustment of Conversion Price. . . . . . . . . . . . . . 74
Section 14.6 Effect of Reclassification, Consolidation,
Merger or Sale. . . . . . . . . . . . . . . . . . . . . . 85
Section 14.7 Taxes on Shares Issued. . . . . . . . . . . . . . . . . . 86
Section 14.8 Reservation of Shares; Shares to Be Fully Paid;
Listing of Common Stock. . . . . . . . . . . . . . . . . . 87
Section 14.9 Responsibility of Trustee . . . . . . . . . . . . . . . . 87
Section 14.10 Notice to Holders Prior to Certain
Actions . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE XV
SUBORDINATION
Section 15.1 Agreement to Subordinate. . . . . . . . . . . . . . . . . 89
Section 15.2 Certain Definitions . . . . . . . . . . . . . . . . . . . 89
Section 15.3 Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . 90
Section 15.4 Default on Senior Indebtedness. . . . . . . . . . . . . . 91
Section 15.5 When Distribution Must Be Paid Over . . . . . . . . . . . 92
Section 15.6 Notice by Company . . . . . . . . . . . . . . . . . . . . 92
Section 15.7 Subrogation . . . . . . . . . . . . . . . . . . . . . . . 93
Section 15.8 Relative Rights . . . . . . . . . . . . . . . . . . . . . 93
Section 15.9 Subordination May Not Be Impaired by Company. . . . . . . 93
Section 15.10 Distribution or Notice to Representative. . . . . . . . . 94
Section 15.11 Rights of Trustee and Paying Agent. . . . . . . . . . . . 94
Section 15.12 Authorization to Effect Subordination . . . . . . . . . . 95
Section 15.13 Conversions Not Deemed Payment. . . . . . . . . . . . . . 95
Section 15.14 Authorization to Effect Subordination . . . . . . . . . . 96
Section 15.15 Acceleration of Notes . . . . . . . . . . . . . . . . . . 96
Section 15.16 Amendments. . . . . . . . . . . . . . . . . . . . . . . . 96
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ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Pooling of Interests. . . . . . . . . . . . . . . . . . . 97
Section 16.2 Provisions Binding on Company's
Successors. . . . . . . . . . . . . . . . . . . . . . . . 97
Section 16.3 Official Acts by Successor Company. . . . . . . . . . . . 97
Section 16.4 Addresses for Notices, Etc. . . . . . . . . . . . . . . . 97
Section 16.5 Communications by Holders with Other Holders . . . . . . . 98
Section 16.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . 98
Section 16.7 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee . . . . . . . . . . . . . . . . . 98
Section 16.8 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . 99
Section 16.9 No Security Interest Created. . . . . . . . . . . . . . . 99
Section 16.10 Trust Indenture Act . . . . . . . . . . . . . . . . . . . 99
Section 16.11 Trust Indenture Act Controls. . . . . . . . . . . . . . . 99
Section 16.12 Benefits of Indenture . . . . . . . . . . . . . . . . . . 99
Section 16.13 Table of Contents, Headings Etc.. . . . . . . . . . . . . 99
Section 16.14 Authenticating Agent. . . . . . . . . . . . . . . . . . . 100
Section 16.15 Execution in Counterparts . . . . . . . . . . . . . . . . 100
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