EXHIBIT 4.8
CONVERTIBLE DEBENTURE GUARANTEE AGREEMENT
XXXXXXXXXXX INTERNATIONAL LTD.
DATED AS OF JUNE 26, 2002
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
------------------- -------------------
310(a) ................................................... 4.1(a)
310(b) ................................................... 4.1(c), 2.8
310(c) ................................................... Inapplicable
311(a) ................................................... 2.2(b)
311(b) ................................................... 2.2(b)
311(c) ................................................... Inapplicable
312(a) ................................................... 2.2(a)
312(b) ................................................... 2.2(b)
313 ................................................... 2.3
314(a) ................................................... 2.4
314(b) ................................................... Inapplicable
314(c) ................................................... 2.5
314(d) ................................................... Inapplicable
314(e) ................................................... 1.1, 2.5, 3.2
314(f) ................................................... 2.1, 3.2
315(a) ................................................... 3.1(d)
315(b) ................................................... 2.7
315(c) ................................................... 3.1
315(d) ................................................... 3.1(d)
316(a) ................................................... 1.1, 2.6, 5.4
316(b) ................................................... 5.3
316(c) ................................................... Inapplicable
317(a) ................................................... Inapplicable
317(b) ................................................... Inapplicable
318(a) ................................................... 2.1(b)
----------
* This Cross-Reference Table does not constitute part of the
Convertible
Debenture Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INTERPRETATION..........................................................................2
Section 1.1 Definitions and Interpretation...............................................................2
ARTICLE II TRUST INDENTURE ACT....................................................................................4
Section 2.1 Trust Indenture Act; Application.............................................................4
Section 2.2 Lists of Holders of Securities...............................................................4
Section 2.3 Reports by the Convertible Debenture Guarantee Trustee.......................................5
Section 2.4 Periodic Reports to Convertible Debenture Guarantee Trustee..................................5
Section 2.5 Evidence of Compliance with Conditions Precedent.............................................5
Section 2.6 Events of Default; Waiver....................................................................6
Section 2.7 Event of Default; Notice.....................................................................6
Section 2.8 Conflicting Interests........................................................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF CONVERTIBLE DEBENTURE GUARANTEE TRUSTEE.................................6
Section 3.1 Powers and Duties of the Convertible Debenture Guarantee Trustee.............................6
Section 3.2 Certain Rights of Convertible Debenture Guarantee Trustee....................................8
Section 3.3 Not Responsible for Recitals or Issuance of
Convertible Debenture Guarantee
Agreement................................................................................10
ARTICLE IV CONVERTIBLE DEBENTURE GUARANTEE TRUSTEE...............................................................11
Section 4.1 Convertible Debenture Guarantee Trustee; Eligibility........................................11
Section 4.2 Appointment, Removal and Resignation of Convertible Debenture Guarantee Trustee.............11
ARTICLE V GUARANTEE..............................................................................................12
Section 5.1 Guarantee...................................................................................12
Section 5.2 Execution and Delivery of Notation of Guarantees............................................15
Section 5.3 Obligations Not Affected....................................................................15
Section 5.4 Rights of Holders...........................................................................16
Section 5.5 Limitations on Merger and Consolidation of Guarantor........................................17
ARTICLE VI SUBORDINATION.........................................................................................17
Section 6.1 Guarantees Subordinated to Senior Indebtedness..............................................17
Section 6.2 Payment Over of Proceeds Upon Dissolution, Etc..............................................18
Section 6.3 Prior Payment to Senior Indebtedness Upon Acceleration of Convertible Debentures............19
Section 6.4 No Payment When Senior Indebtedness in Default..............................................19
Section 6.5 Payment Permitted in Certain Situations.....................................................20
Section 6.6 Subrogation to Rights of Holders of Senior Indebtedness.....................................20
-i-
Section 6.7 Provisions Solely to Define Relative Rights.................................................21
Section 6.8 Trustee to Effectuate Subordination.........................................................21
Section 6.9 No Waiver of Subordination Provisions.......................................................21
Section 6.10 Notice to Convertible Debenture Guarantee Trustee...........................................22
Section 6.11 Reliance on Judicial Order or Certificate of Liquidating Agent..............................22
Section 6.12 Convertible Debenture Guarantee Trustee Not Fiduciary for Holders of Senior
Indebtedness.............................................................................23
Section 6.13 Rights of Convertible Debenture Guarantee Trustee as Holder of Senior Indebtedness,
Preservation of Convertible Debenture Guarantee Trustee's Rights.........................23
Section 6.14 Article Applicable to Paying Agents.........................................................23
Section 6.15 Certain Conversions Deemed Payment..........................................................23
ARTICLE VII EFFECTS OF DEFEASANCE................................................................................24
Section 7.1 Effects of Defeasance.......................................................................24
ARTICLE VIII INDEMNIFICATION.....................................................................................24
Section 8.1 Exculpation.................................................................................24
Section 8.2 Indemnification.............................................................................25
Section 8.3 Fees and Expenses...........................................................................25
ARTICLE IX MISCELLANEOUS.........................................................................................25
Section 9.1 Successors and Assigns......................................................................25
Section 9.2 Amendments..................................................................................25
Section 9.3 Notices.....................................................................................26
Section 9.4 Benefit.....................................................................................27
Section 9.5 Governing Law...............................................................................27
-ii-
CONVERTIBLE DEBENTURE GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "
Convertible Debenture Guarantee
Agreement"), dated as of June 26, 2002, is executed and delivered by XXXXXXXXXXX
INTERNATIONAL LTD., a Bermuda exempted company (the "Guarantor"), and JPMORGAN
CHASE BANK, a
New York banking corporation, as trustee, for the benefit of the
Holders (as defined herein) from time to time of the Convertible Debentures (as
defined herein) of XXXXXXXXXXX INTERNATIONAL, INC., a Delaware corporation (the
"Issuer").
RECITALS:
WHEREAS, the Issuer, formerly known as EVI, Inc., has heretofore
executed and delivered to JPMorgan Chase Bank, formerly known as The Chase
Manhattan Bank, as Trustee, an Indenture, dated as of October 15, 1997, as
supplemented by the First Supplemental Indenture thereto, dated as of October
28, 1997 and the Second Supplemental Indenture thereto dated as of the date
hereof, providing for the issuance from time to time of one or more series of
the Issuer's Debentures; and
WHEREAS, the Issuer has, in accordance with such First Supplemental
Indenture, previously issued $402,500,000 aggregate original principal amount of
its 5% Convertible Subordinated Preferred Equivalent Debentures due 2027 (the
"Convertible Debentures"); and
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of May
8, 2002 (the "Merger Agreement") among Guarantor, Xxxxxxxxxxx U.S. Holdings,
L.L.C., a Delaware limited liability company and an indirect, wholly owned
subsidiary of Guarantor, Xxxxxxxxxxx Merger Inc., a Delaware corporation and an
indirect, wholly owned subsidiary of Guarantor ("Sub"), and the Issuer, Sub has
agreed to merge with and into the Issuer (the "Merger"), with the Issuer being
the surviving corporation in the Merger, following which the Issuer will be an
indirect, wholly owned subsidiary of Guarantor; and
WHEREAS, in connection with such reorganization, the Guarantor has
determined that it will be in the best interests of and beneficial to the
Guarantor to enter into this
Convertible Debenture Guarantee Agreement for the
purposes of providing a subordinated guarantee of the Subordinated Debentures in
accordance with the terms of this
Convertible Debenture Guarantee Agreement; and
WHEREAS, the provision of this
Convertible Debenture Guarantee
Agreement, and of the subordinated guarantee herein contained, by Guarantor for
the benefit of the Holders in accordance herewith does not require the consent
of any Holders; and
WHEREAS, all things necessary have been done to make this
Convertible
Debenture Guarantee Agreement a valid agreement of the Issuer and the Guarantor,
in accordance with its terms.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which the Guarantor
hereby acknowledges, and which the Guarantor hereby acknowledges shall benefit
the Guarantor, the Guarantor executes
and delivers this
Convertible Debenture Guarantee Agreement for the benefit of
the Holders and agrees as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions and Interpretation. In this Convertible
Debenture Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Convertible Debenture
Guarantee Agreement but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Indenture as in effect at the date of
execution of this Convertible Debenture Guarantee Agreement have the
same meaning when used in this Convertible Debenture Guarantee
Agreement unless otherwise defined in this Convertible Debenture
Guarantee Agreement;
(c) a term defined anywhere in this Convertible Debenture
Guarantee Agreement has the same meaning throughout;
(d) all references to "the Convertible Debenture Guarantee
Agreement" or "this Convertible Debenture Guarantee Agreement," or to
any other instrument, are to this Convertible Debenture Guarantee
Agreement, or such instrument, as modified, supplemented or amended
from time to time;
(e) all references in this Convertible Debenture Guarantee
Agreement to Articles and Sections are to Articles and Sections of this
Convertible Debenture Guarantee Agreement, unless otherwise specified;
(f) a term defined in the Trust Indenture Act (as defined
below) has the same meaning when used in this Convertible Debenture
Guarantee Agreement, unless otherwise defined in this Convertible
Debenture Guarantee Agreement or unless the context otherwise requires;
and
(g) a reference to the singular includes the plural and vice
versa.
"Convertible Debenture Guarantee Trustee" means JPMorgan Chase Bank, a
New York banking corporation, until a Successor Convertible Debenture Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Convertible Debenture Guarantee Agreement and thereafter means
each such Successor Convertible Debenture Guarantee Trustee.
"Corporate Trust Office" means the office of the Convertible Debenture
Guarantee Trustee at which the corporate trust business of the Convertible
Debenture Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
-2-
"Covered Person" means any Holder of Convertible Debentures and the
Convertible Debenture Guarantee Trustee.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Convertible Debenture Guarantee
Agreement.
"Guarantees" has the meaning specified in Section 5.1(a).
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Convertible Debentures; provided, however, that, in
determining whether the holders of the requisite percentage of Convertible
Debentures have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Person known to a Responsible Officer of
the Convertible Debenture Guarantee Trustee to be an Affiliate of the Guarantor.
"Indemnified Person" means the Convertible Debenture Guarantee Trustee,
any Affiliate of the Convertible Debenture Guarantee Trustee, or any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Convertible Debenture Guarantee Trustee.
"Indenture" means the Indenture (the "Base Indenture") dated as of
October 15, 1997, among the Issuer and JPMorgan Chase Bank, as trustee (the
"Indenture Trustee"), as supplemented and amended by that certain First
Supplemental Indenture (the "First Supplemental Indenture") between the Issuer
and the Indenture Trustee dated as of October 28, 1997 and that certain Second
Supplemental Indenture (the "Second Supplemental Indenture") among the Issuer,
the Guarantor and the Indenture Trustee dated as of the date hereof, and any
indenture supplemental thereto applicable to the Convertible Debentures (the
Base Indenture, as so supplemented and amended, is referred to herein as the
"Indenture").
"Indenture Event of Default" shall mean any event specified in Section
5.1 of the Indenture.
"Officers' Certificate" means, with respect to the Guarantor, a
certificate signed by the Chairman, the President, a Vice President, the
Treasurer, the Secretary, an Assistant Treasurer or an Assistant Secretary of
the Guarantor.
"Responsible Officer" means, with respect to the Convertible Debenture
Guarantee Trustee, any officer within the Corporate Trust Office of the
Convertible Debenture Guarantee Trustee with direct responsibility for the
administration of this Convertible Debenture Guarantee Agreement and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and familiarity
with the particular subject.
"Senior Indebtedness" means, with respect to the Guarantor, (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of the
Guarantor for money borrowed under any credit agreements, notes, guarantees or
similar documents and (b) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by the Guarantor, including, without
limitation, all indebtedness and all obligations of the Company to pay fees and
other amounts in connection therewith, and any refinancing thereof, including
interest accruing on or
-3-
after a bankruptcy or other similar event, whether or not an allowed claim
therein; (ii) all capital lease obligations of the Guarantor; (iii) all
obligations of the Guarantor incurred, issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Guarantor
and all obligations of the Guarantor under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of the Guarantor for reimbursement on any letter of credit,
banker's acceptance, security purchase facility or similar credit transaction;
(v) all obligations of the Guarantor (contingent or otherwise) with respect to
interest rate or other swap, cap or collar agreements, oil or gas commodity
hedge transactions or other similar instruments or agreements or foreign
currency hedge, exchange, purchase or similar instruments or agreements; (vi)
all obligations of the types referred to in clauses (i) through (v) of other
Persons for the payment of which the Guarantor is responsible or liable as
obligor, guarantor, surety or otherwise; and (vii) all obligations of the types
referred to in clauses (i) through (vi) of other Persons secured by any lien on
any property or asset of the Guarantor (whether or not such obligation is
assumed by the Guarantor), whether outstanding on the date of this Convertible
Debenture Guarantee Agreement or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Guarantor, except for (A) any such
indebtedness that is by its terms subordinated to or pari passu with the
Guarantees, and (B) any indebtedness between the Guarantor and its Affiliates,
including all other debt securities and guarantees in respect of those debt
securities, issued to any trust, or a trustee of such trust, partnership or
other entity affiliated with the Guarantor that is a financing vehicle of the
Guarantor (a "Financing Entity") in connection with the issuance by such
Financing Entity of preferred securities or other securities that rank pari
passu with, or junior to, such preferred securities.
"Successor Convertible Debenture Guarantee Trustee" means a successor
Convertible Debenture Guarantee Trustee possessing the qualifications to act as
Convertible Debenture Guarantee Trustee under Section 4.1.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Convertible Debenture Guarantee Agreement is subject
to the provisions of the Trust Indenture Act that are required to be
part of this Convertible Debenture Guarantee Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Convertible Debenture Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
Section 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Convertible Debenture
Guarantee Trustee (unless the Convertible Debenture Guarantee Trustee
is otherwise the registrar of the
-4-
Convertible Debentures) with a list, in such form as the Convertible
Debenture Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of such date, (i)
semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Convertible Debenture Guarantee Trustee may
reasonably require, of the names and addresses of the Holders as of
such Regular Record Date; and (ii) at such other times as the
Convertible Debenture Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a list
of similar form and content as of a date not more than 15 days prior to
the time such list is furnished, excluding from any such list names and
addresses received by the Convertible Debenture Guarantee Trustee in
its capacity as Debenture Registrar under the Indenture.
The Convertible Debenture Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Convertible Debenture Guarantee Trustee shall comply
with its obligations under Section 311(a) of the Trust Indenture Act.
Section 2.3 Reports by the Convertible Debenture Guarantee Trustee. The
Convertible Debenture Guarantee Trustee shall in each year transmit to Holders
such reports concerning the Convertible Debenture Guarantee Trustee and its
actions under this Convertible Debenture Guarantee Agreement as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Convertible Debenture
Guarantee Trustee shall, within sixty days after each May 15 following the date
of this Convertible Debenture Guarantee Agreement transmit by mail to Holders a
brief report, dated as of such May 15, which complies with the provisions of
Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Convertible Debenture Guarantee Trustee with each stock
exchange upon which any Debentures are listed, with the Commission and with the
Guarantor. The Guarantor will promptly notify the Trustee when any Debentures
are listed on any stock exchange or market center.
Section 2.4 Periodic Reports to Convertible Debenture Guarantee
Trustee. The Guarantor shall provide to the Convertible Debenture Guarantee
Trustee such documents, reports and information, (if any) and the compliance
certificate, required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Convertible Debenture
Guarantee Trustee is for informational purposes only and the Convertible
Debenture Guarantee Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Convertible Debenture Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Convertible Debenture Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Convertible Debenture Guarantee Agreement
-5-
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in the
form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver. The Holders of a majority in
principal amount of Convertible Debentures may, as provided in the Indenture, by
vote, on behalf of all Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Convertible Debenture Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 2.7 Event of Default; Notice.
(a) The Convertible Debenture Guarantee Trustee shall, within
90 days after the occurrence of a default with respect to this
Convertible Debenture Guarantee Agreement, mail by first class postage
prepaid, to all Holders, notices of all defaults actually known to a
Responsible Officer, unless such defaults have been cured before the
giving of such notice, provided, that, except in the case of default in
the payment of any amounts due under the Guarantees, the Convertible
Debenture Guarantee Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or a Responsible
Officer in good faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Convertible Debenture Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the Convertible
Debenture Guarantee Trustee shall have received written notice from the
Guarantor, or a Responsible Officer charged with the administration of
this Convertible Debenture Guarantee Agreement shall have obtained
actual knowledge, of such Event of Default.
Section 2.8 Conflicting Interests. The Indenture shall be deemed to be
specifically described in this Convertible Debenture Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CONVERTIBLE DEBENTURE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Convertible Debenture Guarantee
Trustee.
(a) This Convertible Debenture Guarantee Agreement shall be
held by the Convertible Debenture Guarantee Trustee for the benefit of
the Holders, and the Convertible Debenture Guarantee Trustee shall not
transfer this Convertible Debenture Guarantee Agreement to any Person
except a Holder exercising his or her rights pursuant to Section 5.4(b)
or to a Successor Convertible Debenture Guarantee Trustee on acceptance
by such Successor Convertible Debenture Guarantee Trustee of its
-6-
appointment to act as Successor Convertible Debenture Guarantee
Trustee. The right, title and interest of the Convertible Debenture
Guarantee Trustee shall automatically vest in any Successor Convertible
Debenture Guarantee Trustee, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor
Convertible Debenture Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer charged with the administration of this Convertible Debenture
Guarantee Agreement has occurred and is continuing, the Convertible
Debenture Guarantee Trustee shall enforce this Convertible Debenture
Guarantee Agreement for the benefit of the Holders.
(c) The Convertible Debenture Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Convertible Debenture
Guarantee Agreement, and no implied covenants shall be read into this
Convertible Debenture Guarantee Agreement against the Convertible
Debenture Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer, the Convertible Debenture
Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Convertible Debenture Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Convertible Debenture Guarantee
Agreement shall be construed to relieve the Convertible Debenture
Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the
Convertible Debenture Guarantee Trustee shall be
determined solely by the express provisions of this
Convertible Debenture Guarantee Agreement, and the
Convertible Debenture Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Convertible Debenture Guarantee Agreement, and no
implied covenants or obligations shall be read into
this Convertible Debenture Guarantee Agreement
against the Convertible Debenture Guarantee Trustee;
and
(B) in the absence of bad faith on the part
of the Convertible Debenture Guarantee Trustee, the
Convertible Debenture Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Convertible Debenture Guarantee Trustee and
-7-
conforming to the requirements of this Convertible
Debenture Guarantee Agreement; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to
the Convertible Debenture Guarantee Trustee, the
Convertible Debenture Guarantee Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this
Convertible Debenture Guarantee Agreement;
(ii) the Convertible Debenture Guarantee Trustee
shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that
the Convertible Debenture Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Convertible Debenture Guarantee Trustee
shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of
the Convertible Debentures relating to the time, method and
place of conducting any proceeding for any remedy available to
the Convertible Debenture Guarantee Trustee, or exercising any
trust or power conferred upon the Convertible Debenture
Guarantee Trustee under this Convertible Debenture Guarantee
Agreement; and
(iv) no provision of this Convertible Debenture
Guarantee Agreement shall require the Convertible Debenture
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or
powers, if the Convertible Debenture Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under
the terms of this Convertible Debenture Guarantee Agreement or
indemnity, reasonably satisfactory to the Convertible
Debenture Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
Section 3.2 Certain Rights of Convertible Debenture Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Convertible Debenture Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Convertible Debenture Guarantee Agreement
may be sufficiently evidenced by an Officers' Certificate.
-8-
(iii) Whenever, in the administration of this
Convertible Debenture Guarantee Agreement, the Convertible
Debenture Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Convertible Debenture
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The Convertible Debenture Guarantee Trustee
shall have no duty to see to any recording, filing or
registration of any instrument (or any rerecording, refiling
or registration thereof).
(v) The Convertible Debenture Guarantee Trustee may
consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The
Convertible Debenture Guarantee Trustee shall have the right
at any time to seek instructions concerning the administration
of this Convertible Debenture Guarantee Agreement from any
court of competent jurisdiction.
(vi) The Convertible Debenture Guarantee Trustee
shall be under no obligation to exercise any of the rights or
powers vested in it by this Convertible Debenture Guarantee
Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Convertible Debenture
Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Convertible Debenture Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Convertible Debenture
Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Convertible Debenture Guarantee
Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Convertible Debenture
Guarantee Trustee, upon the occurrence of an Event of Default,
of its obligation to exercise the rights and powers vested in
it by this Convertible Debenture Guarantee Agreement.
(vii) The Convertible Debenture Guarantee Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Convertible
Debenture Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit.
(viii) The Convertible Debenture Guarantee Trustee
may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or
-9-
by or through agents, nominees, custodians or attorneys, and
the Convertible Debenture Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Convertible Debenture
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Convertible Debenture
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be
required to inquire as to the authority of the Convertible
Debenture Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Convertible
Debenture Guarantee Agreement, both of which shall be
conclusively evidenced by the Convertible Debenture Guarantee
Trustee's or its agent's taking such action.
(x) Whenever in the administration of this
Convertible Debenture Guarantee Agreement the Convertible
Debenture Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Convertible Debenture
Guarantee Trustee (i) may request instructions from the
Holders of a majority in principal amount of the Convertible
Debentures, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying
on or acting in accordance with such instructions.
(xi) The Convertible Debenture Guarantee Trustee
shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Convertible Debenture Guarantee Agreement.
(b) No provision of this Convertible Debenture Guarantee
Agreement shall be deemed to impose any duty or obligation on the
Convertible Debenture Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the
Convertible Debenture Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Convertible Debenture
Guarantee Trustee shall be construed to be a duty.
Section 3.3 Not Responsible for Recitals or Issuance of Convertible
Debenture Guarantee Agreement. The recitals contained in this Convertible
Debenture Guarantee Agreement shall be taken as the statements of the Guarantor,
and the Convertible Debenture Guarantee Trustee does not assume any
responsibility for their correctness. The Convertible Debenture Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Convertible Debenture Guarantee.
-10-
ARTICLE IV
CONVERTIBLE DEBENTURE GUARANTEE TRUSTEE
Section 4.1 Convertible Debenture Guarantee Trustee; Eligibility.
(a) There shall at all times be a Convertible Debenture
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person organized and doing business under
the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Convertible Debenture Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the
Convertible Debenture Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Convertible Debenture Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Convertible Debenture Guarantee
Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of Convertible
Debenture Guarantee Trustee.
(a) Subject to Section 4.2(b), the Convertible Debenture
Guarantee Trustee may be appointed or removed without cause at any time
by the Guarantor except during an Event of Default.
(b) The Convertible Debenture Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Convertible
Debenture Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor
Convertible Debenture Guarantee Trustee and delivered to the Guarantor.
(c) The Convertible Debenture Guarantee Trustee shall hold
office until a Successor Convertible Debenture Guarantee Trustee shall
have been appointed or until its
-11-
removal or resignation. The Convertible Debenture Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by
an instrument in writing executed by the Convertible Debenture
Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Convertible Debenture Guarantee
Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Convertible Debenture
Guarantee Trustee and delivered to the Guarantor and the resigning
Convertible Debenture Guarantee Trustee.
(d) If no Successor Convertible Debenture Guarantee Trustee
shall have been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery of an instrument of removal
or resignation, the Convertible Debenture Guarantee Trustee resigning
or being removed may petition any court of competent jurisdiction for
appointment of a Successor Convertible Debenture Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Convertible Debenture Guarantee
Trustee.
(e) No Convertible Debenture Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Convertible Debenture
Guarantee Trustee.
(f) Upon termination of this Convertible Debenture Guarantee
Agreement or removal or resignation of the Convertible Debenture
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay
to the Convertible Debenture Guarantee Trustee all amounts due to the
Convertible Debenture Guarantee Trustee accrued to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
Section 5.1 Guarantee.
(a) For value received, the Guarantor hereby fully,
irrevocably, unconditionally and absolutely guarantees to the Holders
of the Convertible Debentures and to the Convertible Debenture
Guarantee Trustee the due and punctual payment of the principal of, and
premium, if any, and interest on the Convertible Debentures, and all
other amounts due and payable under the Indenture and the Convertible
Debentures by the Issuer to the Indenture Trustee or the Holders
(including, without limitation, all costs and expenses (including
reasonable legal fees and disbursements) incurred by the Convertible
Debenture Trustee, the Indenture Trustee or the Holders in connection
with the enforcement of the Indenture and the Guarantees)
(collectively, the "Indenture Obligations"), when and as such
principal, premium, if any, interest, and other amounts shall become
due and payable, whether at the Stated Maturity, upon redemption or by
declaration of acceleration or otherwise, according to the terms of the
Convertible Debentures and the Indenture. The guarantees by the
Guarantor set forth in this Article V are referred to herein as the
"Guarantees". Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts that constitute part
of the
-12-
Indenture Obligations and would be owed by the Issuer to the Indenture
Trustee or the Holders under the Indenture and the Convertible
Debentures but for the fact that they are unenforceable, reduced,
limited, impaired, suspended or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Issuer.
(b) Failing payment when due of any amount guaranteed pursuant
to the Guarantees, for whatever reason, the Guarantor will be obligated
to pay the same immediately to the Convertible Debenture Guarantee
Trustee, without set-off or counterclaim or other reduction whatsoever
(whether for taxes, withholding or otherwise). Each Guarantee hereunder
is intended to be a general, unsecured obligation of the Guarantor,
subordinated in right of payment pursuant to the subordination
provisions of this Convertible Debenture Guarantee Agreement. The
Guarantor hereby agrees that, to the fullest extent permitted by
applicable law, its obligations hereunder shall be full, irrevocable,
unconditional and absolute, irrespective of the validity, regularity or
enforceability of the Convertible Debentures, the Guarantees or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder with respect to any provisions hereof or thereof,
the recovery of any judgment against the Issuer, any action to enforce
the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Guarantor. The Guarantor
hereby agrees that in the event of a default in payment of the
principal of, or premium, if any, or interest on the Convertible
Debentures, or any other amounts payable under the Indenture and the
Convertible Debentures by the Issuer to the Indenture Trustee or the
Holders, whether at the Stated Maturity, upon redemption or by
declaration of acceleration or otherwise, legal proceedings may be
instituted by the Convertible Debenture Guarantee Trustee on behalf of
the Holders or, subject to Section 5.4 hereof, by the Holders, on the
terms and conditions set forth in this Convertible Debenture Guarantee
Agreement, directly against the Guarantor to enforce the Guarantees
without first proceeding against the Issuer.
(c) To the fullest extent permitted by applicable law, the
obligations of the Guarantor under this Article V shall be as aforesaid
full, irrevocable, unconditional and absolute and shall not be
impaired, modified, discharged, released or limited by any occurrence
or condition whatsoever, including, without limitation, (i) any
compromise, settlement, release, waiver, renewal, extension, indulgence
or modification of, or any change in, any of the obligations and
liabilities of the Issuer or the Guarantor contained in any of the
Convertible Debentures or the Indenture, (ii) any impairment,
modification, release or limitation of the liability of the Issuer, the
Guarantor or any of their estates in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or
future provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (iii) the assertion or
exercise by the Issuer, the Guarantor, the Indenture Trustee or the
Convertible Debenture Guarantee Trustee of any rights or remedies under
any of the Convertible Debentures, the Guarantees or the Indenture or
their delay in or failure to assert or exercise any such rights or
remedies, (iv) the assignment or the purported assignment of any
property as security for any of the Convertible Debentures, including
all or any part of the rights of the Issuer or the Guarantor under the
Indenture or this Convertible Debenture Guarantee Agreement, (v) the
extension of the time for payment by the Issuer or the Guarantor of any
payments or
-13-
other sums or any part thereof owing or payable under any of the terms
and provisions of any of the Convertible Debentures, the Guarantees or
the Indenture or of the time for performance by the Issuer or the
Guarantor of any other obligations under or arising out of any such
terms and provisions or the extension or the renewal of any thereof,
(vi) the modification or amendment (whether material or otherwise) of
any duty, agreement or obligation of the Issuer or the Guarantor set
forth in the Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of
the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment,
rehabilitation or relief of, or other similar proceeding affecting, the
Issuer or any of the Guarantor or any of their respective assets, or
the disaffirmance of any of the Convertible Debentures, the Guarantees
or the Indenture in any such proceeding, (viii) the release or
discharge of the Issuer or the Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in
any of such instruments by operation of law, (ix) the unenforceability
of any of the Convertible Debentures, the Guarantees or the Indenture,
(x) any change in the name, business, capital structure, corporate
existence, or ownership of the Issuer or the Guarantor, or (xi) any
other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, a surety or the Guarantor.
(d) To the fullest extent permitted by applicable law, the
Guarantor hereby (i) waives diligence, presentment, demand of payment,
notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Issuer or the Guarantor, and
all demands and notices whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guarantees may be
transferred and that the benefit of its obligations hereunder shall
extend to each holder of any agreement, instrument or document
evidencing the Guarantees without notice to them and (iii) covenants
that its Guarantee will not be discharged except by complete
performance of the Guarantees. To the fullest extent permitted by
applicable law, the Guarantor further agrees that if at any time all or
any part of any payment theretofore applied by any Person to any
Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including without limitation, the insolvency, bankruptcy or
reorganization of the Guarantor, such Guarantee shall, to the extent
that such payment is or must be rescinded or returned, be deemed to
have continued in existence notwithstanding such application, and the
Guarantees shall continue to be effective or be reinstated, as the case
may be, as though such application had not been made.
(e) The Guarantor shall be subrogated to all rights of the
Holders and the Indenture Trustee against the Issuer in respect of any
amounts paid by the Guarantor pursuant to the provisions of this
Convertible Debenture Guarantee Agreement; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation with respect
to any of the Convertible Debentures until all of the Convertible
Debentures and the Guarantees thereof and all other Indenture
Obligations shall have been indefeasibly paid in full or discharged.
-14-
(f) A director, officer, employee or stockholder, as such, of
the Guarantor shall not have any liability for any obligations of the
Guarantor under this Convertible Debenture Guarantee Agreement or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the
part of the Convertible Debenture Guarantee Trustee, the Indenture
Trustee or the Holders, any right, power, privilege or remedy under
this Article V and the Guarantees shall operate as a waiver thereof,
nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or
the exercise of any other rights, powers, privileges or remedies. The
rights and remedies herein provided for are cumulative and not
exclusive of any rights or remedies provided in law or equity. Nothing
contained in this Article V shall limit the right of the Convertible
Debenture Guarantee Trustee, the Indenture Trustee or the Holders to
take any action to accelerate the maturity of the Convertible
Debentures pursuant to the Indenture or to pursue any rights or
remedies hereunder or under applicable law.
Section 5.2 Execution and Delivery of Notation of Guarantees.
To further evidence the Guarantees, the Guarantor hereby agrees that a
notation of such Guarantees may be endorsed on each Convertible Debenture
authenticated and delivered by the Indenture Trustee and executed by either
manual or facsimile signature of an officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full
force and effect notwithstanding any failure to endorse on any Convertible
Debenture a notation relating to the Guarantee thereof.
If an officer of a Guarantor whose signature is on this Convertible
Debenture Guarantee Agreement or a Convertible Debenture no longer holds that
office at the time the Indenture Trustee authenticates such Convertible
Debenture or at any time thereafter, the Guarantor's Guarantee of such
Convertible Debenture shall be valid nevertheless.
The delivery of any Convertible Debenture by the Indenture Trustee,
after the authentication thereof under the Indenture, shall constitute due
delivery of the Guarantees set forth in this Subordinated Debenture Guarantee
Agreement on behalf of the Guarantor.
Section 5.3 Obligations Not Affected. To the fullest extent permitted
by applicable law, the obligations, covenants, agreements and duties of the
Guarantor under this Convertible Debenture Guarantee Amount shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to a
Convertible Debenture to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of any sums payable under the terms of a Convertible
Debenture or the extension of time for
-15-
the performance of any other obligation under, arising out of, or in
connection with, a Convertible Debenture;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of a Convertible Debenture, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, a
Convertible Debenture;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor with respect to the Indenture Obligations shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders.
(a) The Holders of a majority in principal amount of the
Convertible Debentures have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Convertible Debenture Guarantee Trustee in respect of this Convertible
Debenture Guarantee Agreement or exercising any trust or power
conferred upon the Convertible Debenture Guarantee Trustee under this
Convertible Debenture Guarantee Agreement.
(b) If the Convertible Debenture Guarantee Trustee fails to
enforce this Convertible Debenture Guarantee Agreement, any Holder may
institute a legal proceeding directly against the Guarantor to enforce
the Convertible Debenture Guarantee Trustee's rights under this
Convertible Debenture Guarantee Agreement, without first instituting a
legal proceeding against the Issuer, the Convertible Debenture
Guarantee Trustee or any other person or entity. The Guarantor waives
any right or remedy to require that any action be brought first against
the Issuer or any other person or entity before proceeding directly
against the Guarantor.
-16-
Section 5.5 Limitations on Merger and Consolidation of Guarantor.
(a) The Guarantor shall not, so long as any Convertible
Debentures are Outstanding, consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person, unless:
(A) The Person formed by such consolidation
or into which the Guarantor is merged or the Person
which acquires by conveyance or transfer, or which
leases, the properties and assets of the Guarantor
substantially as an entirety shall be an exempted
company, corporation, partnership, limited liability
company or trust and shall expressly assume, by an
agreement supplemental hereto, executed and delivered
to the Convertible Debenture Guarantee Trustee, in
form satisfactory to the Convertible Debenture
Guarantee Trustee, the obligations of the Guarantor
hereunder;
(B) immediately after giving effect to such
transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be
continuing; and
(C) the Guarantor has delivered to the
Convertible Debenture Guarantee Trustee an officers'
certificate of the Guarantor and an Opinion of
Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such
supplemental agreement comply with this Section
5.5(a) and that all conditions precedent herein
provided for relating to such transaction have been
complied with.
(b) Upon any consolidation of the Guarantor with, or merger of
the Guarantor into, any other Person or any conveyance, transfer or
lease of the properties and assets of the Guarantor substantially as an
entirety to any other Person in accordance with Section 5.5(a), the
successor Person formed by such consolidation or into which the
Guarantor is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Guarantor under this Convertible Debenture
Guarantee Agreement with the same effect as if such successor Person
had been named as the Guarantor herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and such Securities and
coupons and may liquidate and dissolve.
ARTICLE VI
SUBORDINATION
Section 6.1 Guarantees Subordinated to Senior Indebtedness The
Guarantor covenants and agrees, and each Holder, by the Holder's acceptance of a
Guarantee, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the
-17-
indebtedness represented by the Guarantees is hereby expressly made subordinate
and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Guarantor, whether outstanding at the date of this
Convertible Debenture Guarantee Agreement or thereafter incurred. No provision
of this Article shall prevent the occurrence of any default or Event of Default
hereunder.
Section 6.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any
payment by the Guarantor or distribution of assets of the Guarantor of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Guarantor,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Guarantor
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Guarantor on
account of any Indenture Obligations; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Guarantor, or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, which the Holders of the Convertible Debentures or
the Trustee would be entitled to receive from the Guarantor, except for the
provisions of this Article, shall be paid by the Guarantor or by any receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, or by the Holders of the Convertible Debentures or by
the Convertible Debenture Guarantee Trustee or the Indenture Trustee hereunder
or under the Indenture if received by them or it, directly to the holders of
Senior Indebtedness of the Guarantor (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Guarantor) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the Convertible Debentures,
the Convertible Debenture Guarantee Trustee or to the Indenture Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Guarantor of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Convertible Debenture Guarantee Trustee, the Indenture Trustee or any Holder
of the Convertible Debentures before all Senior Indebtedness of the Guarantor is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective interests may
appear, as calculated by the Guarantor, for application to the payment of all
Senior Indebtedness of the Guarantor, as the case may be, remaining unpaid to
the extent necessary to pay such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Guarantor as
reorganized or readjusted, or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or readjustment
-18-
which are subordinated in right of payment to all Senior Indebtedness which may
at the time be outstanding to substantially the same extent as, or to a greater
extent than, the Guarantees are so subordinated as provided in this Article. The
consolidation of the Guarantor with, or the merger of the Guarantor into,
another Person or the liquidation or dissolution of the Guarantor following the
conveyance or transfer of its properties and assets substantially as an entirety
to another Person upon the terms and conditions set forth in Article V shall not
be deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the
Guarantor for the purposes of this Section if the Person formed by such
consolidation or into which the Guarantor is merged or the Person which acquires
by conveyance or transfer such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article V.
Section 6.3 Prior Payment to Senior Indebtedness Upon Acceleration of
Convertible Debentures. In the event that any Convertible Debentures are
declared due and payable before their Stated Maturity, then and in such event
the holders of Senior Indebtedness outstanding at the time the Convertible
Debentures become due and payable shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all Senior Indebtedness
or provision shall be made for such payment in cash, before the Covered Persons
are entitled to receive any payment (including any payment which may be payable
by reason of the payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Guarantees) by the Guarantor on account of
the Indenture Obligations or on account of the purchase or other acquisition of
Convertible Debentures.
In the event that, notwithstanding the foregoing, the Guarantor shall
make any payment to the Convertible Debenture Guarantee Trustee, the Indenture
Trustee or the Holder of any Guarantee prohibited by the foregoing provisions of
this Section, and if such fact shall, at or prior to the time of such payment,
have been made known to the Convertible Debenture Guarantee Trustee, Indenture
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Guarantor.
Section 6.4 No Payment When Senior Indebtedness in Default. In the
event and during the continuation of any default by the Guarantor in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Guarantor, as the case may be, beyond any applicable grace
period with respect thereto, or in the event that the maturity of any Senior
Indebtedness of the Guarantor, as the case may be, has been accelerated because
of a default, then, in any such case, no payment shall be made by the Guarantor
with respect to the Guarantees until such default is cured or waived or ceases
to exist or any such acceleration or demand for payment has been rescinded.
No payment shall be made with respect to the Guarantees if a default,
other than a payment default, on Senior Indebtedness occurs and is continuing
that then permits the lenders to accelerate its maturity and the Convertible
Debenture Guarantee Trustee receives a notice of the default (a "Payment
Blockage Notice") from the Guarantor. If the Trustee receives any Payment
Blockage Notice, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (a) at least 365 days shall have
elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice, and (b) all scheduled payments of principal,
-19-
premium, if any, and interest on the Convertible Debentures that have come due
have been paid in full in cash. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Convertible Debenture Guarantee Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.
The Guarantor may make payments in respect of the Guarantees upon the
earlier of: (x) the date upon which the default is cured or waived or ceases to
exist or (y) 179 days pass after a Payment Blockage Notice is received by the
Trustee if the maturity of the Senior Indebtedness has not been accelerated,
unless this Section 6.4 otherwise prohibits the payment or distribution at the
time of such payment or distribution.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Convertible Debenture Guarantee Trustee when such payment is
prohibited by the preceding paragraphs of this Section 6.4, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of the Senior Indebtedness.
Section 6.5 Payment Permitted in Certain Situations. Nothing contained
in this Article or elsewhere in this Convertible Debenture Guarantee Agreement
shall prevent (a) the Guarantor, at any time except during the pendency of any
dissolution, winding-up, liquidation or reorganization of the Guarantor, whether
voluntary or involuntary or any bankruptcy, insolvency, receivership or other
proceedings of the Guarantor referred to in Section 6.2 or under the conditions
described in Section 6.3 or 6.4, from making payments at any time on the
Guarantees, or (b) the application by the Convertible Debenture Guarantee
Trustee of any money deposited with it hereunder to the payment of or on account
of the Guarantees or the retention of such payment by the Holders, if, at the
time of such application by the Convertible Debenture Guarantee Trustee, it did
not have actual knowledge that such payment would have been prohibited by the
provisions of this Article.
Section 6.6 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the rights of the Holders of Guarantees
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this Article
(equally and ratably with the holders of indebtedness of the Guarantor which by
its express terms is subordinated to indebtedness of the Guarantor to
substantially the same extent as the Guarantees are subordinated to the Senior
Indebtedness and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Convertible Debentures
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of Guarantees or the
-20-
Convertible Debenture Guarantee Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to or for the benefit of the holders of Senior Indebtedness by
Holders of Guarantees or the Convertible Debenture Guarantee Trustee, shall, as
among the Guarantor, its creditors other than holders of Senior Indebtedness and
the Holders of Guarantees, be deemed to be a payment or distribution by the
Guarantor to or on account of the Senior Indebtedness.
Section 6.7 Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Covered Persons on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere
in this Convertible Debenture Guarantee Agreement is intended to or shall (a)
impair, as among the Guarantor, its creditors other than holders of Senior
Indebtedness and the Covered Persons, the obligation of the Guarantor, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Guarantor), to pay to the Covered Persons the
amounts due thereunder as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Guarantor of the Covered Persons and creditors of the Guarantor, as the case may
be, other than the holders of Senior Indebtedness; or (c) prevent the
Convertible Debenture Guarantee Trustee or the Holder of any Guarantee from
exercising all remedies otherwise permitted by applicable law upon default under
this Convertible Debenture Guarantee Agreement, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Convertible
Debenture Guarantee Trustee or such Holder.
Section 6.8 Trustee to Effectuate Subordination. Each Covered Person by
its acceptance thereof authorizes and directs the Convertible Debenture
Guarantee Trustee on such Covered Person's to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Convertible Debenture Guarantee Trustee such Holder's
attorney-in-fact for any and all such purposes.
Section 6.9 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Guarantor or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Guarantor
with the terms, provisions and covenants of this Convertible Debenture Guarantee
Agreement, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Convertible Debenture Guarantee Trustee
or the Covered Persons, without incurring responsibility to the Covered Persons
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Covered Persons to the holders of Senior
Indebtedness do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (b) sell, exchange, release or
-21-
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the payment or
collection of Senior Indebtedness; and (d) exercise or refrain from exercising
any rights against the Guarantor and any other Person.
Section 6.10 Notice to Convertible Debenture Guarantee Trustee. The
Guarantor shall give prompt written notice to the Convertible Debenture
Guarantee Trustee located at the Corporate Trust Office of any fact known to the
Guarantor which would prohibit the making of any payment to or by the
Convertible Debenture Guarantee Trustee in respect of the Guarantees pursuant to
the provisions of this Article. Notwithstanding the provisions of this Article
or any other provision of this Convertible Debenture Guarantee Agreement, the
Convertible Debenture Guarantee Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Convertible Debenture Guarantee Trustee in respect of the Guarantees
pursuant to the provisions of this Article, unless and until a Responsible
Officer of the Convertible Debenture Guarantee Trustee shall have received at
its Corporate Trust Office written notice thereof from the Guarantor or a holder
or holders of Senior Indebtedness or from any trustee therefor; and, prior to
the receipt of any such written notice, the Convertible Debenture Guarantee
Trustee shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Convertible Debenture Guarantee Trustee shall
have not received the notice provided for in this Section at least three
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose, then, anything herein contained to the contrary
notwithstanding, the Convertible Debenture Guarantee Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within three Business Days prior to such
date.
The Convertible Debenture Guarantee Trustee shall be entitled to rely
on the delivery to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee
therefor). In the event that the Convertible Debenture Guarantee Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Convertible Debenture
Guarantee Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Convertible Debenture Guarantee Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Convertible Debenture Guarantee Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 6.11 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Guarantor referred to
in this Article, the Convertible Debenture Guarantee Trustee and the Covered
Persons shall be entitled to conclusively rely upon any order or decree entered
by any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receivership, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Convertible Debenture Guarantee Trustee or to the
-22-
Covered Persons, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Guarantor, as the case may be, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
Section 6.12 Convertible Debenture Guarantee Trustee Not Fiduciary for
Holders of Senior Indebtedness. With respect to the holders of Senior
Indebtedness, the Convertible Debenture Guarantee Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article, and no implied covenants or obligations with respect to
the holders of such Senior Indebtedness shall be read into this Convertible
Debenture Guarantee Agreement against the Convertible Debenture Guarantee
Trustee. Except with respect to Section 6.4, the Convertible Debenture Guarantee
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 or creditors if it
shall in good faith pay over or distribute to Covered Persons or to the
Guarantor or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
Section 6.13 Rights of Convertible Debenture Guarantee Trustee as
Holder of Senior Indebtedness, Preservation of Convertible Debenture Guarantee
Trustee's Rights. The Convertible Debenture Guarantee Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Convertible Debenture Guarantee Agreement shall
deprive the Convertible Debenture Guarantee Trustee of any of its rights as such
holder.
Nothing in this Article shall subordinate to Senior Indebtedness the
claims of, or payments to, the Convertible Debenture Guarantee Trustee under or
pursuant to Sections 8.2 or 8.3.
Section 6.14 Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Convertible Debenture Guarantee Trustee shall
have been appointed by the Guarantor and be then acting hereunder, the term
"Convertible Debenture Guarantee Trustee" as used in this Article shall in such
case (unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Convertible Debenture Guarantee Trustee.
Section 6.15 Certain Conversions Deemed Payment. For the purposes of
this Article only, (a) the issuance and delivery of junior securities (or cash
paid in lieu of fractional shares) upon conversion of Convertible Debentures in
accordance with the Indenture, or pursuant to the terms set forth in an
Officers' Certificate, shall not be deemed to constitute a payment or
distribution on account of the Guarantees or on account of the purchase or other
acquisition of Convertible Debentures, and (b) the payment, issuance or delivery
of cash, property or securities (other than junior securities and cash paid in
lieu of fractional shares) upon conversion of a Convertible Debenture shall be
deemed to constitute payment on account of the principal of such Convertible
Debenture. For the purposes of this Section, the term "junior securities" means
(i)
-23-
shares of any stock of any class of the Guarantor and (ii) securities of the
Guarantor which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the
Convertible Debentures are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Convertible Debenture Guarantee
Agreement is intended to or shall impair, as among the Guarantor, its creditors
other than holders of Senior Indebtedness and the Covered Persons, the right,
which is absolute and unconditional, of the Holder of any Convertible Debenture
to convert such Convertible Debenture in accordance with the Indenture.
ARTICLE VII
EFFECTS OF DEFEASANCE
Section 7.1 Effects of Defeasance. Upon any defeasance in accordance
with Section 4.4 of the Indenture of the Convertible Debentures, the Guarantor
shall be discharged from its obligations hereunder in respect of the Guarantees
to the same extent and subject to the same conditions as the Issuer is released
from its obligations under the Indenture in respect of the Convertible
Debentures. Upon any covenant defeasance in accordance with Section 4.5 of the
Indenture of the Convertible Debentures, the Guarantor shall be discharged from
its obligations under Section 5.5(a) hereof to the same extent and subject to
the same conditions as the Issuer is released from its obligations in respect of
the Convertible Debentures under Section 4.5 of the Indenture.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, expense, liability, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified
Person, in the absence of bad faith, in accordance with this
Convertible Debenture Guarantee Agreement and in a manner that such
Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Convertible
Debenture Guarantee Agreement or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such
information, opinions, reports or statements presented to the Guarantor
by any Person as to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the
Guarantor, including
-24-
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders might properly be paid.
Section 8.2 Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.2 shall survive the termination of
this Convertible Debenture Guarantee Agreement or the earlier resignation or
removal of the Convertible Debenture Guarantee Trustee.
Section 8.3 Fees and Expenses. The guarantor covenants and agrees to
pay to the Convertible Debenture Guarantee Trustee from time to time, and the
Convertible Debenture Guarantee Trustee shall be entitled to, the fees and
expenses agreed in writing between the Guarantor and the Convertible Debenture
Guarantee Trustee, and will further pay or reimburse the Convertible Debenture
Guarantee Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Convertible Debenture Guarantee Trustee in
accordance with any of the provisions hereof or any other documents executed in
connection herewith (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of all persons not regularly in
its employ). The obligations of the Guarantor under this Section 8.3 to
compensate the Convertible Debenture Guarantee Trustee for reasonable expenses,
disbursements and advances shall survive the satisfaction and discharge of this
Convertible Debenture Guarantee Agreement or the earlier resignation or removal
of the Convertible Debenture Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Successors and Assigns. All guarantees and agreements
contained in this Convertible Debenture Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders then outstanding.
Section 9.2 Amendments. Except with respect to any supplements required
hereunder to evidence the succession of a new Guarantor in accordance with
Section 5.3 hereof or to evidence the succession of a new Convertible Debenture
Guarantee Trustee hereunder, and (2) any changes that do not materially
adversely affect the rights of Holders (in either of which cases no consent of
Holders will be required), this Convertible Debenture Guarantee Agreement may
only be amended with the prior approval of the Holders of a majority in
principal amount of the Convertible Debentures. The provisions of the Indenture
with respect to consents to amendments thereof (whether at a meeting or
otherwise) shall apply to the giving of such approval. Prior to the execution of
any amendment to this Convertible Debenture Guarantee Agreement, the Convertible
Debenture Guarantee Trustee shall be entitled to receive and
-25-
conclusively rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Convertible Debenture Guarantee
Agreement and that all conditions precedent to such execution and delivery have
been satisfied. The Convertible Debenture Guarantee Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Convertible
Debenture Guarantee Trustee's and the holders' rights, duties or immunities
under this Convertible Debenture Guarantee Agreement.
Section 9.3 Notices. All notices provided for in this Convertible
Debenture Guarantee Agreement shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed by first class
mail, as follows:
(a) If given to the Issuer, at the Issuer's mailing address
set forth below (or such other address as the Issuer may give notice of
to the Holders and the Convertible Debenture Guarantee Trustee):
Xxxxxxxxxxx International, Inc.
000 Xxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(b) If given to the Convertible Debenture Guarantee Trustee,
at the Convertible Debenture Guarantee Trustee's Corporate Trust
Office, Attention Institutional Trust Services (or such other address
as the Convertible Debenture Guarantee Trustee may give notice of to
the Holders and the Issuer).
(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders and the Convertible Debenture Guarantee
Trustee):
Xxxxxxxxxxx International Ltd.
c/o Weatherford International, Inc.
000 Xxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(d) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
-26-
Section 9.4 Benefit. This Convertible Debenture Guarantee Agreement is
solely for the benefit of the Holders and, subject to Section 3.1(a), is not
separately transferable from the Convertible Debentures.
Section 9.5 Governing Law. THIS CONVERTIBLE DEBENTURE GUARANTEE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF
NEW YORK.
-27-
THIS CONVERTIBLE DEBENTURE GUARANTEE AGREEMENT is executed as of the
day and year first above written.
XXXXXXXXXXX INTERNATIONAL LTD., as
Guarantor
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Director
-------------------------------
JPMORGAN CHASE BANK, as Convertible
Debenture Guarantee Trustee
By: /s/ X.X. XXXXX
------------------------------------
Name: X.X. Xxxxx
-------------------------------
Title: Vice President
-------------------------------
-28-
