1
Central Parking Corporation, as Issuer
and
Chase Bank of Texas, National Association, as Trustee
----------------
Indenture
Dated as of March 18, 1998
$103,092,775*
5 1/4% Convertible Subordinated Debentures Due 2028
----------------
--------
* Subject to increase to up to $113,402,050 in the event an over-allotment
option is exercised.
2
Central Parking Corporation
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- ---------
ss.310 (a)(1) ................................. 609
(a)(2) ................................. 609
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(b) ................................. 608, 610
ss. 311 (a) ................................. 613
(b) ................................. 613
ss. 312 (a) ................................. 701
ss. 312 (a) ................................. 702(a)
(b) ................................. 702(b)
(c) ................................. 702(c)
ss. 313 (a) ................................. 703(a)
(b) ................................. 703(a)
(c) ................................. 703(a)
(d) ................................. 703(b)
ss. 314 (a) ................................. 704, 102
(b) ................................. Not Applicable
(c)(1) ................................. 102
(c)(2) ................................. 102
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 102
ss. 315 (a) ................................. 601
(b) ................................. 602
(c) ................................. 601
(d) ................................. 601
(e) ................................. 514
(a)(1)(A) ................................. 502, 512
(a)(1)(B) ................................. 513
(a)(2) ................................. Not Applicable
(b) ................................. 508
(c) ................................. 104(c)
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ss. 317 (a)(1) ................................. 503
(a)(2) ................................. 504
(b) ................................. 1003
ss. 318 (a) ................................. 107
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
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Recitals of the Company..........................................................-1-
ARTICLE I Definitions and Other Provisions of General Application........-3-
SECTION 101. Definitions....................................................-3-
SECTION 102. Compliance Certificates and Opinions..........................-14-
SECTION 103. Form of Documents Delivered to Trustee........................-15-
SECTION 104. Acts of Holders; Record Dates.................................-16-
SECTION 105. Notices, Etc., to Trustee and the Company.....................-17-
SECTION 106. Notice to Holders; Waiver.....................................-18-
SECTION 107. Conflict with Trust Indenture Act.............................-18-
SECTION 108. Effect of Headings and Table of Contents......................-19-
SECTION 109. Successors and Assigns........................................-19-
SECTION 110. Separability Clause...........................................-19-
SECTION 111. Benefits of Indenture.........................................-19-
SECTION 112. Governing Law.................................................-19-
SECTION 113. Legal Holidays................................................-19-
ARTICLE II Convertible Debenture Forms...................................-21-
SECTION 201. Forms Generally...............................................-21-
SECTION 202. Initial Issuance to Property Trustee..........................-21-
ARTICLE III The Convertible Debentures....................................-23-
SECTION 301. Title and Terms...............................................-23-
SECTION 302. Denominations.................................................-24-
SECTION 303. Execution, Authentication, Delivery and Dating................-25-
SECTION 304. Temporary Convertible Debentures..............................-25-
SECTION 305. Registration, Registration of Transfer and Exchange...........-26-
SECTION 306. Mutilated, Destroyed, Lost and Stolen Convertible Debentures..-27-
SECTION 307. Payment of Interest; Interest Rights Preserved................-28-
SECTION 308. Persons Deemed Owners.........................................-30-
SECTION 309. Cancellation..................................................-31-
SECTION 310. Right of Set Off..............................................-31-
SECTION 311. CUSIP Numbers.................................................-31-
SECTION 312. Option to Extend Interest Payment Period......................-31-
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Page
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SECTION 313. Paying Agent, Security Registrar and Conversion Agent.........-33-
SECTION 314. Global Security...............................................-33-
ARTICLE IV Satisfaction and Discharge....................................-37-
SECTION 401. Satisfaction and Discharge of Indenture.......................-37-
SECTION 402. Application of Trust Money....................................-38-
ARTICLE V Remedies......................................................-39-
SECTION 501. Events of Default.............................................-39-
SECTION 502. Acceleration of Maturity; Rescission and Annulment............-40-
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................-41-
SECTION 504. Trustee May File Proofs of Claim..............................-42-
SECTION 505. Trustee May Enforce Claims Without Possession of
Convertible Debentures........................................-43-
SECTION 506. Application of Money Collected................................-43-
SECTION 507. Limitation on Suits...........................................-44-
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest and Convert............................-44-
SECTION 509. Restoration of Rights and Remedies............................-45-
SECTION 510. Rights and Remedies Cumulative................................-45-
SECTION 511. Delay or Omission Not Waiver..................................-45-
SECTION 512. Control by Holders............................................-46-
SECTION 513. Waiver of Past Defaults.......................................-46-
SECTION 514. Undertaking for Costs.........................................-47-
SECTION 515. Waiver of Stay or Extension Laws..............................-47-
SECTION 516. Enforcement by Holders of Preferred Securities................-47-
ARTICLE VI The Trustee...................................................-49-
SECTION 601. Certain Duties and Responsibilities...........................-49-
SECTION 602. Notice of Defaults............................................-49-
SECTION 603. Certain Rights of Trustee.....................................-49-
SECTION 604. Not Responsible for Recitals or Issuance
of Convertible Debentures.....................................-51-
SECTION 605. May Hold Convertible Debentures...............................-51-
SECTION 606. Money Held in Trust...........................................-51-
SECTION 607. Compensation and Reimbursement................................-51-
SECTION 608. Disqualification; Conflicting Interests.......................-52-
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Page
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SECTION 609. Corporate Trustee Required; Eligibility.......................-52-
SECTION 610. Resignation and Removal; Appointment of Successor.............-53-
SECTION 611. Acceptance of Appointment by Successor........................-54-
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...-55-
SECTION 613. Preferential Collection of Claims Against Company.............-55-
ARTICLE VII Holders' Lists and Reports by Trustee and Company.............-56-
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....-56-
SECTION 702. Preservation of Information; Communications to Holders........-56-
SECTION 703. Reports by Trustee............................................-57-
SECTION 704. Reports by Company............................................-57-
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease..........-58-
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..........-58-
SECTION 802. Successor Substituted.........................................-59-
ARTICLE IX Supplemental Indentures.......................................-60-
SECTION 901. Supplemental Indentures Without Consent of Holders............-60-
SECTION 902. Supplemental Indentures with Consent of Holders...............-61-
SECTION 903. Execution of Supplemental Indentures..........................-62-
SECTION 904. Effect of Supplemental Indentures.............................-62-
SECTION 905. Conformity with Trust Indenture Act...........................-63-
SECTION 906. Reference in Convertible Debentures to Supplemental
Indentures....................................................-63-
ARTICLE X Covenants; Representations and Warranties.....................-64-
SECTION 1001. Payment of Principal and Interest.............................-64-
SECTION 1002. Maintenance of Office or Agency...............................-64-
SECTION 1003. Money for Convertible Debenture Payments to Be Held in Trust..-64-
SECTION 1004. Statement by Officers as to Default...........................-66-
SECTION 1005. Limitation on Dividends; Covenants as to the Trust............-66-
SECTION 1006. Payment of Expenses of the Trust..............................-67-
SECTION 1007. Registration Rights...........................................-68-
ARTICLE XI Redemption of Convertible Debentures..........................-69-
SECTION 1101. Optional Redemption...........................................-69-
SECTION 1102. Tax Event Optional Redemption.................................-69-
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Page
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SECTION 1103. Applicability of Article......................................-70-
SECTION 1104. Election to Redeem; Notice to Trustee.........................-70-
SECTION 1105. Selection by Trustee of Convertible Debentures to Be Redeemed.-71-
SECTION 1106. Notice of Redemption..........................................-71-
SECTION 1107. Deposit and Payment of Redemption Price.......................-72-
SECTION 1108. Convertible Debentures Payable on Redemption Date.............-73-
SECTION 1109. Convertible Debentures Redeemed in Part.......................-73-
SECTION 1110. No Sinking Fund...............................................-74-
SECTION 1111. Mandatory Redemption..........................................-74-
SECTION 1112. Exchange of Trust Securities For Convertible Debentures.......-74-
ARTICLE XII Subordination of Convertible Debentures.......................-75-
SECTION 1201. Agreement to Subordinate......................................-75-
SECTION 1202. Default on Senior Indebtedness................................-75-
SECTION 1203. Liquidation; Dissolution; Bankruptcy..........................-76-
SECTION 1204. Subrogation...................................................-77-
SECTION 1205. Trustee to Effectuate Subordination...........................-79-
SECTION 1206. Notice by the Company.........................................-79-
SECTION 1207. Rights of the Trustee; Holders of Senior Indebtedness.........-80-
SECTION 1208. Subordination May Not Be Impaired.............................-80-
ARTICLE XIII Conversion of Convertible Debentures..........................-82-
SECTION 1301. Conversion Rights.............................................-82-
SECTION 1302. Conversion Procedures.........................................-82-
SECTION 1303. Conversion Price Adjustments..................................-85-
SECTION 1304. Fundamental Change............................................-90-
SECTION 1305. Notice of Adjustments of Conversion Price.....................-93-
SECTION 1306. Prior Notice of Certain Events................................-93-
SECTION 1307. Certain Defined Terms.........................................-94-
SECTION 1308. Dividend or Interest Reinvestment Plans.......................-95-
SECTION 1309. Certain Additional Rights.....................................-95-
SECTION 1310. Restrictions on Company Common Stock Issuable Upon
Conversion....................................................-96-
SECTION 1311. Trustee Not Responsible for Determining Conversion Price or
Adjustments...................................................-97-
ARTICLE XIV Immunity of Incorporators, Stockholders,
Officers and Directors........................................-98-
SECTION 1401. No Recourse...................................................-98-
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EXHIBIT AND ANNEX
EXHIBIT A Form of Convertible Debenture
ANNEX A Amended and Restated Declaration of Trust among the Company, as
trust sponsor, Chase Bank of Texas, National Association, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware trustee
and Monroe J. Carell, Jr., Xxxxx X. Xxxx and Xxxxxx X. Xxxxxxxx as
Administrative Trustees, dated as of March 18, 1998.
--------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of March 18, 1998, between Central Parking
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 00xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx, and Chase Bank of
Texas, National Association, a Texas banking corporation, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, Central Parking Finance Trust, a Delaware business trust
(the "Trust"), formed under the Amended and Restated Declaration of Trust among
the Company, as trust sponsor, Chase Bank of Texas, National Association, as
property trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, as
Delaware trustee (the "Delaware Trustee") and Monroe J. Carell, Jr., Xxxxx X.
Xxxx and Xxxxxx X. Xxxxxxxx, as administrative trustees (the "Administrative
Trustees"), dated as of March 18, 1998 (the "Trust Agreement"), pursuant to the
Purchase Agreement (the "Purchase Agreement") dated March 13, 1998, among the
Company and the initial purchasers named therein, will issue and sell up to
4,000,000 (or 4,400,000 if the over-allotment option is exercised) of its 5 1/4%
Convertible Trust Issued Preferred Securities (the "Preferred Securities") with
a liquidation amount of $25 per Preferred Security, having an aggregate
liquidation amount with respect to the assets of the Trust of $100,000,000 (or
$110,000,000 if the over-allotment option is exercised);
WHEREAS, the trustees of the Trust, on behalf of the Trust, will
execute and deliver to the Company 5 1/4% Convertible Common Securities (the
"Common Securities") of the Trust, registered in the name of the Company, in an
aggregate amount equal to three percent of the capitalization of the Trust,
equivalent to 123,711 Common Securities (or 136,082 Common Securities if the
over-allotment option is exercised), with a liquidation amount of $25 per Common
Security, having an aggregate liquidation amount with respect to the assets of
the Trust of $3,092,775 (or $3,402,050 if the over-allotment option is
exercised) (the "Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase from the Company 5
1/4% Convertible Subordinated Debentures Due 2028 (the "Convertible Debentures")
of the Company in an aggregate principal amount of $103,092,775 (or $113,402,050
if the over-allotment option is exercised);
WHEREAS, the Company is guaranteeing the payment of distributions
on the Preferred Securities, and payment of the Redemption Price and payments on
liquidation with respect to the Preferred Securities, to the extent provided in
the Preferred Securities Guarantee Agreement (the "Guarantee") dated March 18,
1998 between the Company and Chase Bank of Texas, National Association, as
guarantee trustee, for the benefit of the holders of the Preferred Securities
from time to time;
WHEREAS, the Company has duly authorized the creation of the
Convertible
10
Debentures of the tenor and amount herein set forth and to provide therefor the
Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, so long as the Trust is a Holder of Convertible
Debentures, and any Preferred Securities are outstanding, the Trust Agreement
provides that the holders of Preferred Securities may cause the Conversion Agent
to (a) exchange such Preferred Securities for Convertible Debentures held by the
Trust and (b) immediately convert such Convertible Debentures into Common Stock
of the Company; and
WHEREAS, all things necessary to make the Convertible Debentures,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Convertible Debentures by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Convertible Debentures, as
follows:
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ARTICLE II
Definitions and Other Provisions
of General Application
SECTION 201. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning specified in Section 301.
"Additional Payments" means Compounded Interest, Liquidated
Damages, if any, and Additional Interest, if any.
"Administrative Trustees" has the meaning specified in the
Recitals of this instrument.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or co-
registrar.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of the Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any
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other Non-Stock Fundamental Change or any Common Stock Fundamental Change, the
average of the Closing Prices for the Company Common Stock during the ten
trading days prior to the record date for the determination of the holders of
Company Common Stock entitled to receive such securities, cash, or other
property in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, the date upon which the
holders of the Company Common Stock shall have the right to receive such
securities, cash, or other property (such record date or distribution date being
hereinafter referred to as the "Entitlement Date"), in each case as adjusted in
good faith by the Company to appropriately reflect any of the events referred to
in Section 1303.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day on which banking institutions in The
City of New York, in Wilmington, Delaware or in Dallas, Texas are authorized or
required by law to close.
"Closing Price" has the meaning specified in Section 1307.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the recitals to
this Instrument.
"Common Securities Guarantee" means any guarantee that the Company
may enter into that operate directly or indirectly for the benefit of holders of
Common Securities of the Trust.
"Common Stock Fundamental Change" means any Fundamental Change in
which more than 50% of the value (as determined in good faith by the Board of
Directors of the Company) of the consideration received by holders of Company
Common Stock consists of common stock that for each of the ten consecutive
trading days prior to the Entitlement Date has been admitted for listing or
admitted for listing subject to notice of issuance on a national securities
exchange or quoted on the Nasdaq National Market; provided, however, that a
Fundamental Change shall not be a Common Stock Fundamental Change unless either
(i) the Company continues to exist after the occurrence of such Fundamental
Change and the
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outstanding Preferred Securities continue to exist as outstanding Preferred
Securities or (ii) not later than the occurrence of such Fundamental Change, the
outstanding Preferred Securities are converted into or exchanged for shares of
convertible preferred stock of an entity succeeding to the business of the
Company or a subsidiary thereof, which convertible preferred stock has powers,
preferences, and relative, participating, optional, or other rights, and
qualifications, limitations, and restrictions, substantially similar to those of
the Preferred Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Common Stock" includes any stock of any class of the
Company which has no 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 which is not subject to redemption by the Company. However,
subject to the provisions of Article Thirteen, shares issuable on conversion of
Convertible Debentures shall include only shares of the class designated as
Company Common Stock of the Company at the date of this instrument or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and which have no 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 which 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 on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Compounded Interest" has the meaning specified in Section 312.
"Conversion Agent" means the Person appointed to act on behalf of
the holders of Preferred Securities in effecting the conversion of Preferred
Securities as and in the manner set forth in the Trust Agreement and Section
1302 hereof.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Price" has the meaning specified in Section 1301.
"Convertible Debentures" has the meaning specified in the Recitals
to this instrument.
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"Corporate Trust Office" means the principal office of the
Trustee in Dallas, Texas, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is 0000
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000, Attention: Corporate Trust and
Agency Department.
"Defaulted Interest" has the meaning specified in Section 307.
"Delaware Trustee" has the meaning given it in the Recitals of
this instrument.
"Depositary" means, with respect to any Convertible Debentures
issued in the form of one or more Global Security, a clearing agency registered
under the Exchange Act that is dedicated to act as Depositary for the
Convertible Debentures, and will initially be the Depository Trust Company.
"Direct Action" means a proceeding directly instituted by a holder
of Preferred Securities for enforcement of payment to such holder of the
principal of or interest on the Convertible Debentures having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the Convertible
Debentures, if an Event of Default under the Trust Agreement has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the Convertible Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date.)
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Trust Agreement and the Convertible Debentures held by the Property
Trustee are to be distributed to the holders of Trust Securities issued by the
Trust pro rata in accordance with the Trust Agreement.
"Dissolution Tax Opinion" has the meaning specified in the Trust
Agreement.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Extension Period" has the meaning specified in Section 312.
"Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
the Company Common Stock shall be exchanged for, converted into, acquired for,
or constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise), provided, that, in the case of a plan involving more than one
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15
such Transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change shall be deemed to have occurred when substantially all
of the Company Common Stock shall be exchanged for, converted into, or acquired
for or constitute solely the right to receive securities, cash, or other
property, but the adjustment shall be based upon the consideration that a holder
of Company Common Stock received in such Transaction or event as a result of
which more than 50% of the Company Common Stock shall have been exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property. The term "Non-Stock Fundamental Change"
means any Fundamental Change other than a Common Stock Fundamental Change.
"Global Security" has the meaning specified in Section 314.
"Guarantee" has the meaning specified in the Recitals to this
instrument.
"Holder" means a Person in whose name a Convertible Debenture is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supple mental indenture,
respectively.
"Initial Purchasers" means Bear, Xxxxxxx & Co., Inca., X.X.
Xxxxxxxx & Co., Xxxxxxx Xxxxx and Company, L.L.C., NationsBanc Xxxxxxxxxx
Securities LLC and SunTrust Equitable Securities, as initial purchasers under
the Purchase Agreement.
"Interest Payment Date" has the meaning specified in Section 301.
"Investment Company Event" has the meaning specified in Annex I
to the Trust Agreement.
"Liquidated Damages" has the meaning specified in the form of
reverse of debenture set forth in Exhibit A to this agreement.
"Maturity", when used with respect to any Convertible Debenture,
means the date on which the principal of such Convertible Debenture becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Ministerial Action" has the meaning specified in Section 1102.
"90-Day Period" has the meaning specified in Section 1102.
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"No Recognition Opinion" has the meaning specified in Annex I to
the Trust Agreement.
"Non Book-Entry Preferred Securities" has the meaning specified in
section 314.
"Non-Stock Fundamental Change" means any Fundamental Change other
than a Common Stock Fundamental Change.
"Notice of Conversion" means the notice to be given by a holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Securities for Convertible Debentures and to convert
such Convertible Debentures into Company Common Stock on behalf of such holder.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Convertible Debentures,
means, as of the date of determination, all Convertible Debentures theretofore
authenticated and delivered under this Indenture, except: (i) Convertible
Debentures theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation; (ii) Convertible Debentures for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Convertible Debentures; provided, that if such Convertible
Debentures are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Convertible Debentures that have been paid pursuant to
Section 307, converted into Company Common Stock pursuant to Section 1301, or in
exchange for or in lieu of which other Convertible Debentures have been
authenticated and delivered pursuant to this Indenture, other than any such
Convertible Debentures in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Convertible Debentures are held
by a bona fide purchaser in whose hands such Convertible Debentures are valid
obligations of the Company, provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Convertible
Debentures have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Convertible Debentures owned by the Company or any
other obligor upon the Convertible Debentures
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or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Convertible Debentures
which the Trustee knows to be so owned shall be so disregarded. Convertible
Debentures so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Convertible Debentures and that
the pledgee is not the Company or any other obligor upon the Convertible
Debentures or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Convertible Debentures on behalf of the
Company.
"Person" means any legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Predecessor Security" of any particular Convertible Debenture
means every previous Convertible Debenture evidencing all or a portion of the
same debt as that evidenced by such particular Convertible Debenture; and, for
the purposes of this definition, any Convertible Debenture authenticated and
delivered under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Convertible Debenture shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Convertible Debenture.
"Preferred Securities" has the meaning specified in the Recitals
to this instrument.
"Property Trustee" has the meaning specified in the Recitals of
this instrument.
"Purchase Agreement" has the meaning specified in the Recitals to
this instrument.
"Purchased Shares" has the meaning specified in Section 1303(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for the common stock
received in such Common Stock Fundamental Change for the ten consecutive trading
days prior to and including the Entitlement Date, as adjusted in good faith by
the Company to appropriately reflect any of the events referred to in Section
1303.
"Redemption Date", when used with respect to any Convertible
Debenture to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Convertible
Debenture to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
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"Redemption Tax Opinion" has the meaning set forth in Annex I to
the Trust Agreement.
"Reference Date" has the meaning specified in Section 1303(c).
"Reference Market Price" shall initially mean $29.37 (which is an
amount equal to 662/3% of the reported last sales price for Company Common Stock
on the NYSE Consolidated Transactions Tape on March 12, 1998) and in the event
of any adjustment of the conversion price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the conversion price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial conversion price of the Preferred
Securities.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any vice-president, any assistant vice-president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in the Corporate Trust Department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Preferred Securities" means all Preferred Securities
required to bear any restricted securities legend pursuant to the Trust
Agreement. "Restricted Securities" means all the Convertible Debentures required
pursuant to Section 202 to bear the Restricted Securities Legend.
"Restricted Securities Legend" has the meaning specified in
Section 202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of
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business), (iv) all obligations of such obligor for the reimbursement of any
letter of credit, banker's acceptance, security purchase facility or similar
credit transaction, (v) all obligations of the type referred to in clauses (i)
through (iv) above of other Persons for the payment of which such obligor is
responsible or liable as obligor, guarantor or otherwise, and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of such obligor (whether or
not such obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Convertible Debentures and (2) any indebtedness between or among such obligor or
its affiliates, including all other debt securities and guarantees in respect of
those debt securities issued to any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities or
other securities which rank pari passu with, or junior to, the Preferred
Securities. Such Senior Indebtedness shall continue to be Senior Indebted ness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
"Special Event" has the meaning specified in Annex I to the Trust
Agreement.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Convertible
Debenture or any installment of interest thereon, means the date specified in
such Convertible Debenture as the fixed date on which the principal, together
with any accrued and unpaid interest (including Compounded Interest), of such
Convertible Debenture or such installment of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50%
of the outstanding Voting Stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Tax Event" has the meaning specified in Annex I to the Trust
Agreement.
"Trading Day" has the meaning specified in Section 1307.
"Transaction" has the meaning specified in Section 1304.
"Trust" has the meaning specified in the Recitals to this
instrument.
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"Trust Agreement" has the meaning specified in the Recitals of
this instrument.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Trust Securities" means Common Securities and Preferred
Securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means capital stock of such Person
which ordinarily has voting power for the election of directors (or Persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of Convertible Debentures has such voting power by
reason of any contingency.
SECTION 202. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or reasonably requested by the Trustee in connection with such
application or request. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such
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examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 203. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 204. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Outstanding Convertible Debentures entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Convertible Debentures shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Convertible Debenture shall
bind every future Holder of the same Convertible Debenture and the Holder of
every Convertible Debenture issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Convertible Debenture.
Without limiting the foregoing, a Holder entitled hereunder to give or take any
such action with regard to any particular Convertible Debenture may do so with
regard to all or any part of the principal amount of such Convertible Debenture
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 205. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust & Agency Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 206. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 207. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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SECTION 208. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 209. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 210. Separability Clause.
In case any provision in this Indenture or in the Convertible
Debentures shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 211. Benefits of Indenture.
Nothing in this Indenture or in the Convertible Debentures,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Indebtedness, the holders of
Preferred Securities (to the extent provided herein) and the Holders of
Convertible Debentures, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 212. Governing Law.
THIS INDENTURE AND THE CONVERTIBLE DEBENTURES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 213. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Convertible Debenture or the last date on which a Holder
has the right to convert his Convertible Debentures shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Convertible Debentures) payment of interest or principal or conversion of the
Convertible Debentures need not be made on such date, but may be made on the
next succeeding Business Day (except that, if such Business Day is in the next
succeeding calendar year, such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, shall be the immediately preceding Business Day)
with the same force and effect as if made on the Interest Payment Date or
Redemption 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, Redemption Date or Stated Maturity, as the case may be.
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ARTICLE IV
Convertible Debenture Forms
SECTION 401. Forms Generally.
The Convertible Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Convertible
Debentures may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Company). The Company shall furnish any such legend not contained in Exhibit A
to the Trustee in writing. Each Convertible Debenture shall be dated the date of
its authentication. The terms and provisions of the Convertible Debentures set
forth in Exhibit A are part of the terms 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.
The definitive Convertible Debentures shall be typewritten or
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Convertible
Debentures may be listed, all as determined by the officers executing such
Convertible Debentures, as evidenced by their execution thereof.
SECTION 402. Initial Issuance to Property Trustee.
The Convertible Debentures initially issued to the Property
Trustee of the Trust shall be in the form of one or more individual certificates
in definitive, fully registered form without coupons and shall bear the
following legend (the "Restricted Securities Legend") unless the Company
determines otherwise in accordance with applicable law.
"THE CONVERTIBLE DEBENTURES EVIDENCED HEREBY AND THE
COMPANY COMMON STOCK ISSUABLE UPON THEIR CONVERSION HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO
THE TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH
TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL
BUYER ACQUIRING FOR
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ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES
AND OTHER JURISDICTIONS.
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ARTICLE VI
The Convertible Debentures
SECTION 601. Title and Terms.
The aggregate principal amount of Convertible Debentures that may
be authenticated and delivered under this Indenture is limited to $103,092,775
(or up to $113,402,050 if the over-allotment option is exercised by the Trust in
accordance with the terms and provisions of the Purchase Agreement), except for
Convertible Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Convertible Debentures pursuant to
Section 304, 305, 306, 906, 1109 or 1301.
The Convertible Debentures shall be known and designated as the "5
1/4% Convertible Subordinated Debentures Due 2028" of the Company. Their Stated
Maturity shall be April 1, 2028, and they shall bear interest at the rate of 5
1/4% per annum, from March 13, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable quarterly (subject to deferral as set forth herein), in arrears, on
January 1, April 1, July 1, October 1 (each an "Interest Payment Date") of each
year, commencing July 1, 1998, until the principal thereof is paid or made
available for payment, and they shall be paid to the Person in whose name the
Convertible Debenture is registered at 5:00 p.m. (New York City time) on the
regular record date for such interest installment, which shall be the March 15,
June 15, September 15 and December 15 next preceding such Interest Payment Date
(the "Regular Record Date"). Interest will compound quarterly and will accrue at
the rate of 5 1/4% per annum on any interest installment in arrears for more
than one quarter or during an extension of an interest payment period as set
forth in Section 312 hereof.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest in computed, will be computed on the
basis of the actual number of days elapsed per 90-day quarter. In the event that
any date on which interest is payable on the Convertible Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Convertible Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Convertible
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Debentures held by the Property Trustee, such amounts as shall be required so
that the net amounts received and retained by the Trust and the Property Trustee
after paying any such taxes, duties, assessments or other governmental charges
will be not less than the amounts the Trust and the Property Trustee would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
The principal of and interest on the Convertible Debentures shall
be payable at the office or agency of the Company in the United States
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Convertible Debentures shall be redeemable as provided in
Article Eleven hereof.
The Convertible Debentures shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Twelve hereof.
The Convertible Debentures shall be convertible as provided in
Article Thirteen hereof.
SECTION 602. Denominations.
The Convertible Debentures shall be issuable only in registered
form without coupons and only in denominations of $25 and integral multiples
thereof.
SECTION 603. Execution, Authentication, Delivery and Dating.
The Convertible Debentures shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief
Executive Officer, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Convertible
Debentures may be manual or facsimile.
Convertible Debentures bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Convertible Debentures or did not hold such offices at the date of such
Convertible Debentures.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Convertible Debentures executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication
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and delivery of such Convertible Debentures; and the Trustee in accordance with
such Company Order shall authenticate and make available for delivery such
Convertible Debentures as in this Indenture provided and not otherwise.
No Convertible Debenture shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Convertible Debenture a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Convertible Debenture shall be conclusive evidence, and the
only evidence, that such Convertible Debenture has been duly authenticated and
delivered hereunder.
SECTION 604. Temporary Convertible Debentures.
Pending the preparation of definitive Convertible Debentures, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Convertible Debentures which are typewritten, printed,
lithographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Convertible Debentures in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Convertible
Debentures may determine, as evidenced by their execution of such Convertible
Debentures.
If temporary Convertible Debentures are issued, the Company will
cause definitive Convertible Debentures to be prepared without unreasonable
delay. After the preparation of definitive Convertible Debentures, the temporary
Convertible Debentures shall be exchangeable for definitive Convertible
Debentures upon surrender of the temporary Convertible Debentures at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Convertible Debentures the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Convertible Debentures of authorized
denominations. Until so exchanged the temporary Convertible Debentures shall in
all respects be entitled to the same benefits under this Indenture as definitive
Convertible Debentures.
SECTION 605. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Convertible Debentures and of transfers of Convertible
Debentures. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Convertible Debentures and transfers of Convertible Debentures
as herein provided.
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Upon surrender for registration of transfer of any Convertible
Debenture at an office or agency of the Company designated pursuant to Section
1002 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Convertible Debentures of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Convertible Debentures may be
exchanged for other Convertible Debentures of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Convertible
Debentures to be exchanged at such office or agency. Whenever any Convertible
Debentures are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Convertible
Debentures which the Holder making the exchange is entitled to receive.
All Convertible Debentures issued upon any registration of
transfer or exchange of Convertible Debentures shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Convertible Debentures surrendered upon such registration
of transfer or exchange.
Every Convertible Debenture presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Convertible Debentures, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Convertible
Debentures, other than exchanges pursuant to Section 304, 906, 1109 or 1301 not
involving any transfer.
SECTION 606. Mutilated, Destroyed, Lost and Stolen Convertible
Debentures.
If any mutilated Convertible Debenture is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Convertible Debenture of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Convertible Debenture and (ii) such Convertible Debenture or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Convertible Debenture has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such
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destroyed, lost or stolen Convertible Debenture, a new Convertible Debenture of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Convertible
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Convertible Debenture, pay such
Convertible Debenture.
Upon the issuance of any new Convertible Debenture under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Convertible Debenture issued pursuant to this Section in
lieu of any destroyed, lost or stolen Convertible Debenture shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Convertible Debenture shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Convertible Debentures duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Convertible
Debentures.
SECTION 607. Payment of Interest; Interest Rights Preserved.
Interest on any Convertible Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Convertible Debenture (or one or more
Predecessor Securities) is registered at 5:00 p.m. (New York City time) on the
Regular Record Date.
Any interest on any Convertible Debenture which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Convertible Debentures (or their
respective Predecessor Securities) are registered at 5:00 p.m. (New York City
time) on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Convertible Debenture and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make
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arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause (a)
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 proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it appears
in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the 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 Convertible Debentures (or their
respective Predecessor Securities) are registered at 5:00 p.m. (New York City
time) on such Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Convertible Debentures may be listed, and, if so listed,
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 (B),
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Convertible Debenture delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Convertible Debenture
shall carry the rights to interest accrued and unpaid, and to accrue (including
in each such case Additional Payments, if any), which were carried by such other
Convertible Debenture.
In the case of any Convertible Debenture which is converted after
any Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Convertible Debenture whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Convertible Debenture (or
one or more Predecessor Securities) is registered at 5:00 p.m. (New York City
time) on such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Convertible Debenture that
is converted prior to any Regular Record Date, interest whose Stated Maturity is
after the date of conversion of such Convertible Debenture shall not be payable,
and the Company shall not make nor be required to make any other payment,
adjustment or allowance with respect to accrued but unpaid interest (including
Additional Payments, if any) on the Convertible Debentures being converted,
which shall be deemed to be paid in full. Subject to any right of the Holder of
such Convertible Debenture or any Predecessor Security to receive interest
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as provided in this paragraph and the second paragraph of Clause (a) of Section
1302, the Company's delivery upon conversion of the fixed number of shares of
Company Common Stock into which the Convertible Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount at
Maturity of the portion of Convertible Debentures so converted and any unpaid
interest (including Additional Payments, if any) accrued on such Convertible
Debentures at the time of such conversion. If any Convertible Debenture called
for redemption is converted, any money deposited with the Trustee or with any
Paying Agent or so segregated and held in trust for the redemption of such
Convertible Debenture shall (subject to any right of the Holder of such
Convertible Debenture or any Predecessor Security to receive interest as
provided in this paragraph) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 608. Persons Deemed Owners.
Prior to due presentment of a Convertible Debenture for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Convertible Debenture is
registered as the owner of such Convertible Debenture for the purpose of
receiving payment of principal of and (subject to Section 307) interest
(including Additional Payments, if any) on such Convertible Debenture and for
all other purposes whatsoever, whether or not such Convertible Debenture be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 609. Cancellation.
All Convertible Debentures surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Convertible Debentures previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Convertible Debentures so delivered shall be promptly cancelled by the Trustee.
No Convertible Debentures shall be authenticated in lieu of or in exchange for
any Convertible Debentures cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Convertible Debentures held
by the Trustee shall be disposed of as directed by a Company Order; provided,
however, that the Trustee shall not be required to destroy the certificates
representing such cancelled Convertible Debentures.
SECTION 610. Right of Set Off.
Notwithstanding anything to the contrary in this Indenture, the
Company shall have the right to set off any payment it is otherwise required to
make hereunder to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
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SECTION 611. CUSIP Numbers.
The Company in issuing the Convertible Debentures 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 Convertible Debentures or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Convertible Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 612. Option to Extend Interest Payment Period.
(a) Provided that no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of the
Convertible Debentures to defer interest payments (including Additional
Payments) from time to time by extending the interest payment period for
successive periods (each, an "Extension Period") not exceeding 20 consecutive
quarters for each such period; provided, no Extension Period may extend beyond
the maturity date of the Convertible Debentures. At the end of each Extension
Period, the Company shall pay all interest then accrued and unpaid (including
Additional Interest) together with interest thereon compounded quarterly at the
rate specified for the Convertible Debentures to the extent permitted by
applicable law ("Compounded Interest"); provided, that during any Extension
Period, the Company shall (i) not declare or pay dividends on, or make a
distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (B) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (C) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (ii) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures (except by conversion into or exchange for shares of its capital
stock) and (iii) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity date of the Convertible Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, the
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Company may commence a new Extension Period, subject to the above requirements.
No interest during an Extension Period, except at the end thereof, shall be due
and payable. Notwithstanding any other provision in this Indenture to the
contrary, the Company shall not have the right at any time to defer any
Additional Interest, including by extending the interest payment period.
(b) If the Property Trustee is the sole Holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrative Trustees and the Property
Trustee of its selection of such Extension Period at least one Business Day
prior to the earlier of (i) the date the distributions on the Preferred
Securities are payable or (ii) if the Preferred Securities are listed on the New
York Stock Exchange or other stock exchange or quotation system, the date the
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities of the record date or the date such distributions are payable, but in
any event not less than 10 Business Days prior to such record date. The Company
shall cause the Trust to give notice of the Company's selection of such
Extension Period to the holders of the Preferred Securities.
(c) If the Property Trustee is not the sole holder of the
Convertible Debentures at the time the Company selects an Extension Period, the
Company shall give the Holders of the Convertible Debentures and the Trustee
written notice of its selection of such Extension Period at least 10 Business
Days prior to the earlier of (i) the next succeeding Interest Payment Date or
(ii) if the Preferred Securities are listed on the New York Stock Exchange or
other stock exchange or quotation system, the date the Company is required to
give notice to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Convertible Debentures on the record or
payment date of such related interest payment, but in any event not less than
two Business Days prior to such record date.
(d) The quarter in which any notice is given pursuant to
paragraphs (b) and (c) hereof shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under paragraph (a) hereof.
SECTION 613. Paying Agent, Security Registrar and Conversion Agent.
The Trustee will initially act as Paying Agent, Security Registrar
and Conversion Agent. The Company may change any Paying Agent, Security
Registrar, co-registrar or Conversion Agent without prior notice. The Company or
any of its Affiliates may act in any such capacity. The Trustee is entitled to
the protections of Article VI in its capacity as Paying agent, Registrar and
Conversion Agent.
SECTION 314. Global Security.
(a) In connection with a Dissolution Event,
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(1) the Convertible Debentures in certificated form
may be presented to the Trustee by the Property Trustee in exchange for a global
Convertible Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Convertible Debentures (a "Global
Security"), to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Administrative Trustees. The
Company upon any such presentation shall execute a Global Security in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with this Indenture. Payments on the
Convertible Debentures issued as a Global Security will be made to the
Depositary; and
(2) if any Preferred Securities are held in non
book-entry certificated form, the Convertible Debentures in certificated form
may be presented to the Trustee by the Property Trustee and any Preferred
Security Certificate which represents Preferred Securities other than Preferred
Securities held by the Depositary or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Convertible
Debentures presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are presented to
the Security Registrar for transfer or reissuance at which time such Preferred
Security Certificates will be cancelled and a Convertible Debenture, registered
in the name of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate liquidation amount
of the Preferred Security Certificate cancelled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance with
this Indenture. On issue of such Convertible Debentures, Convertible Debentures
with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
(c) If (i) the Depositary notifies the Company that it is
unwilling or unable to continue as a depositary for such Global Security and no
successor depositary shall have been appointed, (ii) the Depositary, at any
time, ceases to be a clearing agency registered under the Exchange Act at which
time the Depositary is required to be so registered to act as such depositary
and no successor depositary shall have been appointed, (iii) the Company, in
its sole discretion, determines that such Global Security shall be so
exchangeable or (iv) there shall have occurred an Event of Default with respect
to such Convertible Debentures, as the case may be, the Company will execute,
and, subject to Article Three of this Indenture, the Trustee, upon written
notice from the Company and receipt of a Company Order, will authenticate and
deliver the Convertible Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security. In addition,
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upon an Event of Default or if the Company may at any time determine that the
Convertible Debentures shall no longer be represented by a Global Security, in
such event the Company will execute, and subject to Section 305 of this
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make available for delivery
the Convertible Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
Upon the exchange of the Global Security for such Convertible Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Convertible Debentures
in definitive registered form issued in exchange for the Global Security 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. The Trustee shall deliver such
Convertible Debentures to the Depositary for delivery to the Persons in whose
names such Convertible Debentures are so registered.
(d) Every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form, in capital letters and
bold-face type:
THIS CONVERTIBLE DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITARY OR A NOMINEE THEREOF. THIS CONVERTIBLE DEBENTURE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A CONVERTIBLE DEBENTURE
REGISTERED, AND NO TRANSFER OF THIS CONVERTIBLE DEBENTURE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
(e) If the Depositary is the Depository Trust Company, the Global
Security authenticated and delivered hereunder shall also bear a legend in
substantially the following form, in capital letters and bold-face type:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED
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REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(f) The Convertible Debentures may not be transferred except in
compliance with the Restricted Securities Legend unless otherwise determined by
the Company in accordance with applicable law. Upon any distribution of the
Convertible Debentures to the holders of the Preferred Securities in accordance
with the Trust Agreement, the Company and the Trustee shall enter into a
supplemental indenture pursuant to Section 901(e) to provide for transfer
procedures and restrictions with respect to the Convertible Debentures
substantially similar to those contained in the Trust Agreement to the extent
applicable in the circumstances existing at the time of such distribution.
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ARTICLE VIII
Satisfaction and Discharge
SECTION 801. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Convertible Debentures herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Convertible Debentures theretofore
authenticated and delivered (other than (A) Convertible Debentures
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (B) Convertible Debentures for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(ii) all such Convertible Debentures not theretofore
delivered to the Trustee for cancellation have become due and payable,
and the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Convertible
Debentures not theretofore delivered to the Trustee for cancellation,
for principal and interest (including Additional Payments, if any) to
the date of such deposit (in the case of Convertible Debentures which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be, along with an accountant's certificate
stating such funds are sufficient to pay principal and interest on the
Convertible Debentures when and as due;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the
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Trustee pursuant to subclause (ii) of Clause (a) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 802. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Convertible
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Convertible Debentures subsequently converted
shall be returned to the Company upon Company Request.
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ARTICLE X
Remedies
SECTION 1001. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) failure for 30 days to pay interest on the Convertible
Debentures, including any Additional Payments in respect thereof, when due;
provided that a valid extension of an interest payment period will not
constitute a default in the payment of interest (including Additional Payments,
if any) for this purpose;
(b) failure to pay principal of or premium, if any, on the
Convertible Debentures when due, whether at maturity, upon redemption, by Trust
Agreement or otherwise;
(c) failure by the Company to deliver shares of its Company
Common Stock upon an election by a holder of Preferred Securities to convert
such Preferred Securities;
(d) failure to observe or perform any other covenant contained
in the Indenture for 90 days after notice to the Company by the Trustee or by
the holders of not less than 25% in aggregate outstanding principal amount of
the Convertible Debentures;
(e) entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the property of the
Company, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days;
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or to the
entry of a decree or order for relief in respect of itself in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
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insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company, or the filing
by the Company of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the Company
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the property of the
Company, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(g) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Convertible Debentures to holders of Preferred Securities in liquidation of the
Trust upon the redemption of all of the outstanding Preferred Securities of the
Trust or (ii) certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement.
SECTION 1002. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstand ing Convertible Debentures may declare the principal of
all the Convertible Debentures and any other amounts payable hereunder to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
all accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in this Article, the Holders of a majority
in aggregate principal amount of the Outstanding Convertible Debentures, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest (including Additional
Payments, if any) on all Convertible Debentures,
(ii) the principal of any Convertible Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Convertible
Debentures, and
(iii) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the
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Trustee, its agents and counsel;
and
(b) all Events of Default, other than the non-payment of the
principal of Convertible Debentures which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 1003. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest (including
Additional Payments, if any) on any Convertible Debenture when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of any
Convertible Debenture at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Convertible Debentures, the whole amount then due and payable on
such Convertible Debentures for principal and interest (including Additional
Payments, if any) and, to the extent that payment thereof shall be legally
enforceable, interest on any overdue principal and on any overdue interest
(including Additional Payments, if any), at the rate borne by the Convertible
Debentures, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 1004. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Convertible Debentures), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and
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the Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Convertible Debentures or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 1005. Trustee May Enforce Claims Without Possession of Convertible
Debentures.
All rights of action and claims under this Indenture or the
Convertible Debentures may be prosecuted and enforced by the Trustee without the
possession of any of the Convertible Debentures or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Convertible
Debentures in respect of which such judgment has been recovered.
SECTION 1006. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest (including Additional Payments, if any), upon
presentation of the Convertible Debentures and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including Additional Payments, if any) on
the Convertible Debentures in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Convertible Debentures for principal and interest (including Additional
Payments, if any), respectively.
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SECTION 1007. Limitation on Suits.
Subject to Section 516, no Holder of any Convertible Debenture
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of Convertible
Debentures, the Holders of not less than 25% in aggregate principal amount of
the Outstanding Convert ible Debentures shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Convertible Debentures;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 1008. Unconditional Right of Holders to Receive Principal and
Interest and Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Convertible Debenture shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
307) interest (including Additional Payments, if any) on such Convertible
Debenture on the respective Stated Maturities expressed in such Convertible
Debenture (or, in the case of redemption, on the Redemption Date) and to convert
such Convertible Debenture in accordance with Article Thirteen and to institute
suit for the enforcement of any such payment and right to convert, and such
rights shall not be impaired without the consent of such Holder.
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SECTION 1009. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 1010. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Convertible Debentures in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 1011. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Convertible Debenture to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 1012. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Convert ible Debentures shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided,
that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 1013. Waiver of Past Defaults.
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Subject to Section 902 hereof, the Holders of not less than a
majority in principal amount of the Outstanding Convertible Debentures may on
behalf of the Holders of all the Convertible Debentures waive any past default
hereunder and its consequences, except a default
(a) in the payment of the principal of, premium, if any, or
interest (including Additional Payments, if any) on any Convertible Debenture
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee); or
(b) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected; provided, however, that if the Convertible
Debentures are held by the Trust or a trustee of the Trust, such waiver shall
not be effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such waiver; provided, further, that if the
consent of the Holder of each outstanding Convertible Debenture is required,
such waiver shall not be effective until each holder of the Trust Securities
shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 1014. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Inden ture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee or in any suit for the enforcement of the right to receive the
principal of and interest (including Additional Payments, if any) on any
Convertible Debenture or to convert any Convertible Debenture in accordance with
Article Thirteen.
SECTION 1015. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
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Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 1016. Enforcement by Holders of Preferred Securities.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Convertible Debentures on the date
such interest or principal is otherwise payable, the Company acknowledges that,
in such event, a holder of Preferred Securities may institute a Direct Action
for payment on or after the respective due date specified in the Convertible
Debentures. The Company may not amend this Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of all the
holders of Preferred Securities. Notwithstanding any payment made to such holder
of Preferred Securities by the Company in connection with a Direct Action, the
Company shall remain obligated to pay the principal of and interest on the
Convertible Debentures (including Additional Payments, if any) held by the Trust
or the Property Trustee and the Company shall be subrogated to the rights of the
holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the Holders of the Convert ible
Debentures.
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ARTICLE XII
The Trustee
SECTION 1201. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the 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 it 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 Indenture or indemnity
reasonably satisfactory to the Trustee against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 601.
SECTION 1202. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(d), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default. For all purposes hereof, the Trustee shall not be deemed to
have notice or knowledge of any default described in Section 501(e), (f) or (g)
unless a Responsible Officer assigned to and working in the Corporate Trust
Office has actual knowledge thereof or unless written notice thereof is received
at the Corporate Trust Office.
SECTION 1203. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem
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it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
reasonable examination of the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without gross negligence
or wilful misconduct, and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
SECTION 1204. Not Responsible for Recitals or Issuance of
Convertible Debentures.
The recitals contained herein and in the Convertible
Debentures, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Convertible Debentures. The Trustee
shall not be accountable for the use or application by the Company of the
Convertible Debentures or the proceeds thereof.
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SECTION 1205. May Hold Convertible Debentures.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Convertible Debentures and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar, or such other agent.
SECTION 1206. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 1207. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence or bad
faith; and
(c) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or Section
501(g), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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SECTION 1208. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Inden ture Act and this Indenture.
SECTION 1209. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its Corporate
Trust Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 1210. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Convertible
Debentures, delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Convertible Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 609
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and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Convertible Debenture for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Convertible Debentures delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appoint ment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a
Convertible Debenture for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 1211. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or convey ance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, that on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to
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such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments required to more fully and certainly vest in and confirm
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 1212 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Convertible Deben tures shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Convertible Debentures so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Convertible Debentures.
SECTION 1213. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Convertible Debentures), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
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ARTICLE XIV
Holders' Lists and Reports by Trustee and Company
SECTION 1401. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days prior to
the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 1402. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list fur nished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Convertible
Debentures, and the corre sponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Convertible Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
SECTION 1403. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing May
15, 1998, the Trustee shall transmit by mail to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to
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Holders, be filed by the Trustee with each stock exchange upon which the
Convertible Debentures are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Convertible Debentures are listed on
any stock exchange.
SECTION 1404. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
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 con structive 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).
The Company shall also provide to the Trustee on a timely
basis such information as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal
Revenue Service and the Holders of the Convertible Debentures relating to
original issue discount, if any, includ ing, without limitation, Form 1099-OID
or any successor form.
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ARTICLE XVI
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 1601. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or lease,
all or substantially all of the properties and assets of the Company on a
consolidated basis shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including Additional Payments,
if any) on all the Convertible Debentures and the performance or observance of
every covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Article Thirteen;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to conveyances, leases
and transfers by the Company as transferor or lessor.
SECTION 1602. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company on a consolidated
basis in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to
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which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Convertible
Debentures.
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ARTICLE XVIII
Supplemental Indentures
SECTION 1801. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Convertible Debentures; or
(b) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article Thirteen; or
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provi sions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, that such action pursuant to this Clause (d) shall not
adversely affect the interests of the Holders of the Convertible Debentures or,
so long as any of the Preferred Securities shall remain outstanding, the holders
of the Preferred Securities;
(e) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
to make provision for transfer procedures, certification, book-entry provisions,
the form of restricted securities legends, if any, to be placed on Convertible
Debentures, and all other matters required pursuant to Sections 305 and 314 or
otherwise necessary, desirable or appropriate in connection with the issuance of
Convertible Debentures to holders of Preferred Securities in the event of a
distribution of Convertible Debentures by the Trust if a Special Event occurs
and is continuing.
SECTION 1802. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Convertible Debentures, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the
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Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provi sions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) extend the Stated Maturity of the principal of, or any
installment of interest (including Additional Payments, if any) on, any
Convertible Debenture, or reduce the principal amount thereof, or reduce the
rate or extend the time for payment of interest thereon, or extend the Extension
Period, or reduce any premium payable upon the redemption thereof, or change the
place of payment where, or the coin or currency in which, any Convertible
Debenture or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect the right to convert any Convertible Debenture as provided in Article
Thirteen (except as permitted by Section 901(c)), or modify the provisions of
this Indenture with respect to the subordination of the Convertible Debentures
in a manner adverse to the Holders,
reduce the percentage in principal amount of the Outstanding Convertible
Debentures, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or modify any
of the provisions of this Section or Section 513, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby;
provided that if the Convertible Debentures are held by the Trust or a trustee
of the Trust, such supplemental indenture shall not be effective until the
holders of a majority in liquidation amount of Trust Securities shall have
consented to such supplemental indenture; provided, further, that if the consent
of the Holder of each Outstanding Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental inden ture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior
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to the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.
SECTION 1803. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 1804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Convertible Debentures theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. No such supplemental indenture
shall directly or indirectly modify the provisions of Article Twelve in any
manner which might terminate or impair the rights of the Senior Indebtedness
pursuant to such subordination provisions.
SECTION 1805. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 1806. Reference in Convertible Debentures to Supplemental
Indentures.
Convertible Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Convertible Debentures so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Convertible Debentures.
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ARTICLE XX
Covenants; Representations and Warranties
SECTION 2001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Convertible Debentures and Additional Payments, if any, in
accordance with the terms of the Convertible Debentures and this Indenture.
SECTION 2002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or
agency where Convertible Debentures may be presented or surrendered for payment,
where Convertible Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Convertible Debentures and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Convertible
Debentures may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the United States for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 2003. Money for Convertible Debenture Payments to Be Held
in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Convertible Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Convertible
Debentures, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the
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Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Convertible
Debentures) in the making of any payment in respect of the Convertible
Debentures, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfac tion and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on (including Additional Payments, if any) any Convertible Debenture
and remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
any such Convertible Debenture shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
SECTION 2004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the material terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and,
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
SECTION 2005. Limitation on Dividends; Covenants as to the Trust.
(a) The Company covenants that so long as the Convertible
Debentures are outstanding, if (i) there shall have occurred and be continuing
any event that with the giving
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of notice or the lapse of time or both, would constitute an Event of Default,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Guarantee, or (iii) the Company has exercised its option
to defer interest payments on the Convertible Debentures by extending the
interest payment period and such period, or any extension thereof, shall be
continuing, then the Company shall (A) not declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (x)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (y) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (z) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (B) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures and (C) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee).
(b) The Company also covenants and agrees (i) that it shall
directly or indirectly maintain 100% ownership of the Common Securities of the
Trust; provided, however, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities and (ii) that
it shall use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause the Trust (x) to remain a statutory business
trust, except in connection with the distribution of the Convertible Debentures
to the holders of Trust Securities in liquidation of the Trust, the redemption
of all of the Trust Securities of the Trust, or certain mergers, consolida tions
or amalgamations, each as permitted by the Trust Agreement, and (y) to otherwise
continue to be classified as a grantor trust for United States Federal income
tax purposes.
SECTION 2006. Payment of Expenses of the Trust.
In connection with the offering, sale and issuance of the
Convertible Debentures to the Property Trustee in connection with the sale of
the Trust Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Convertible Debentures, including
commissions, discounts and expenses payable pursuant to the Purchase Agreement
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
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(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for all
costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions, discounts and expenses
in connection therewith), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets); and
pay any and all taxes (other than United States withholding taxes attributable
to the Trust or its assets) and all liabilities, costs and expenses with respect
to such taxes of the Trust.
SECTION 2007. Registration Rights.
The holders of the Preferred Securities, the Holders of
Convertible Debentures, the holders of the Guarantee and the shares of Company
Common Stock issuable upon conversion of the Convertible Debentures are entitled
to the benefits of the Registration Rights Agreement, dated as of March 18,
1998, among the Company and the Initial Purchasers (the "Registration Rights
Agreement").
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ARTICLE XXII
Redemption of Convertible Debentures
SECTION 2201. Optional Redemption.
(a) The Company shall have the right to redeem the Convertible
Debentures, in whole or in part, at any time or from time to time after April 3,
2001 upon not less than 30 nor more than 60 days' notice, at the optional
redemption prices (expressed as a percentage of the principal amount of
Convertible Debentures to be redeemed) shown below, plus any accrued and unpaid
interest (including Additional Payments, if any) to the Redemption Date, if
redeemed during the 12-month period beginning April 3:
Percentage of
Principal
Year Amount
---- -------------
2001 .................................. 103.00%
2002 .................................. 102.25%
2003 .................................. 101.50%
2004 .................................. 100.75%
2005 and thereafter ................... 100.00%
If the Company has deferred interest payments, all unpaid interest must be paid
in cash prior to redemption. Any redemption pursuant to this Section 1101 shall
be made pursuant to the provisions of Sections 1103 through 1108 hereof.
(b) If a partial redemption of the Convertible Debentures would result
in the delisting of the Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Preferred
Securities are listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Convertible Debentures in whole.
SECTION 2202. Tax Event Optional Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Administrative
Trustees shall have been informed by tax counsel rendering the Dissolution Tax
Opinion that a No Recognition Opinion cannot be delivered to the Trust,
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then, notwithstanding Section 1101(a) but subject to Section 1101(b), the
Company shall have the right upon not less than 30 days nor more than 60 days
notice to the Holders of the Convertible Debentures to redeem the Convertible
Debentures in whole (but not in part) for cash at a redemption price equal to
100% of the principal amount of the Convertible Debentures plus accrued and
unpaid interest (including Additional Payments), if any, within 90 days
following the occurrence of such Tax Event (the "90-Day Period"); provided,
however, that if, at the time there is available to the Company or the Trust the
opportunity to eliminate within the 90-Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which, in the sole
judgment of the Company, has or will cause no adverse effect on the Company, the
Trust or the Holders of the Trust Securities and will involve no material cost,
the Company or the Trust shall pursue such Ministerial Action or other measure
in lieu of redemption, and provided, further, that the Company shall have no
right to redeem the Convertible Debentures while the Trust is pursuing any
Ministerial Action or other similar measure pursuant to its obligations under
the Trust Agreement.
SECTION 2203. Applicability of Article.
Redemption of Convertible Debentures at the election of the Company, as
permitted by Sections 1101 and 1102, shall be made in accordance with such
provision and this Article.
SECTION 2204. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Convertible Debentures pursuant
to Section 1101 or 1102 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45 days
and no more than 90 days prior to the Redemption Date fixed by the Company,
notify the Trustee in writing of such Redemption Date and of the principal
amount of Convertible Debentures to be redeemed and provide a copy of the notice
of redemption given to Holders of Convertible Debentures to be redeemed pursuant
to Section 1105.
SECTION 2205. Selection by Trustee of Convertible Debentures to Be Redeemed.
If less than all the Convertible Debentures are to be redeemed (unless
such redemption affects only a single Convertible Debenture), the particular
Convertible Debentures to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Convertible
Debentures not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or any integral multiple thereof) of the
principal amount of the Convertible Debentures.
The Trustee shall promptly notify the Company in writing of the
Convertible Debentures selected for redemption as aforesaid and, in case of any
Convertible Debentures selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Convertible Debenture, whether
such Convertible Debenture is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount of
the Convertible Debenture shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Convertible
Debenture.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Convertible Debentures
shall relate, in the case of any Convertible Debentures redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Convertible Debentures which has been or is to be redeemed.
SECTION 2206. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Convertible Debentures to be redeemed, at such Holder's
address appearing in the Security Register.
All notices of redemption shall identify the Convertible Debentures to
be redeemed (including, if relevant, CUSIP number or ISIN) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that on the Redemption Date the Redemption Price will become due
and payable upon each such Convertible Debenture to be redeemed and that
interest thereon will cease to accrue on and after said date, and
(d) the place or places where such Convertible Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Convertible Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 2207. Deposit and Payment of Redemption Price.
Prior to 10:00 a.m. (New York City time) on the Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, plus (except if the Redemption Date shall be an Interest Payment Date)
accrued and unpaid interest (including Additional
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Payments, if any) on all the Convertible Debentures which are to be redeemed on
that date. Such redemption payment shall be made to the Holders prior to 12:00
noon (New York City time) on the Redemption Date or such earlier time as the
Company determines.
If any Convertible Debenture called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Convertible Debenture shall (subject to
any right of the Holder of such Convertible Debenture or any Predecessor
Security to receive interest as provided in the last paragraph of Section 307)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 2208. Convertible Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Convertible
Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued and unpaid interest, including Additional Payments, if any) such
Convertible Debentures shall cease to bear interest. Upon surrender of any such
Convertible Debenture for redemption in accordance with said notice, such
Convertible Debenture shall be paid by the Company at the Redemption Price,
together with accrued and unpaid interest (including Additional Payments, if
any) to the Redemption Date; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Convertible Debentures, or one or more Predecessor
Convertible Debentures, registered as such at 5:00 p.m. (New York City time) on
the relevant Record Dates according to the terms and the provisions of Section
307.
If any Convertible Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Convertible
Debenture.
SECTION 2209. Convertible Debentures Redeemed in Part.
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange any Convertible
Debenture during a period beginning at 9:00 a.m. (New York City time) 15
Business Days before any selection for redemption of Convertible Debentures and
ending at 5:00 p.m. (New York City time) on the earliest date in which the
relevant notice of redemption is deemed to have been given to all holders of
Convertible Debentures to be so redeemed and (ii) register the transfer of or
exchange any Convertible Debentures so selected for redemption, in whole or in
part, except for the unredeemed portion of any Convertible Debentures being
redeemed in part.
Any Convertible Debenture which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the Trustee
so requires,
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due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Convertible Debenture without service charge, a new Convertible Debenture or
Convertible Debentures, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Convertible Debenture so surrendered.
SECTION 2210. No Sinking Fund.
The Convertible Debentures are not entitled to the benefit of any
sinking fund.
SECTION 2211. Mandatory Redemption.
Upon (i) repayment at maturity or (ii) as a result of acceleration upon
the occurrence and continuation of an Event of Default, the Company shall redeem
the Outstanding Convertible Debentures in whole but not in part, at a redemption
price equal to 100% of the principal amount of such Convertible Debentures plus
any accrued and unpaid interest, including any Additional Payments, to the date
fixed for redemption. Any payment pursuant to this section shall be made prior
to 12:00 noon, New York City time, on the date of such repayment or acceleration
or at such other time on such earlier date as the parties thereto shall agree.
SECTION 2212. Exchange of Trust Securities For Convertible Debentures.
At any time, the Company shall have the right to dissolve the Trust and
cause the Convertible Debentures to be distributed to the holders of the
Preferred Securities in dissolution of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law.
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ARTICLE XXIV
Subordination of Convertible Debentures
SECTION 2401. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Convertible
Debentures by such Holder's acceptance thereof likewise covenants and agrees,
that all Convertible Debentures shall be issued subject to the provisions of
this Article Twelve; and each Holder of a Convertible Debenture, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions. The payment by the Company of the principal of,
premium, if any, and interest (including Additional Payments, if any) on all
Convertible Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all existing and future Senior Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred; provided
however, that no provision of this Article Twelve shall prevent the occurrence
of any default or Event of Default hereunder.
SECTION 2402. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness continuing beyond the period of grace, if any, specified in
the instrument evidencing such Senior Indebtedness, unless and until such
default shall have been cured or waived or shall have ceased to exist, and in
the event that the maturity of any Senior Indebtedness has been accelerated
because of a default, then no payment shall be made by the Company with respect
to the principal of (including redemption payments, if any), premium, if any, or
interest on the Convertible Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1202, 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 Senior Indebtedness.
SECTION 2403. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any
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dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full before any payment
is made on account of the principal (and premium, if any) or interest (including
Additional Payments, if any) on the Convertible Debentures; and upon any such
dissolution or winding up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Convertible
Debentures or the Trustee would be entitled, except for the provisions of this
Article Twelve, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Convertible Debentures or by the Trustee
under this Indenture if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) 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 Convertible Debentures or to
the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Convertible Debentures before all Senior
Indebtedness 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 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 Company, for application to the payment of all
Senior Indebtedness 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 holders of such Senior
Indebtedness.
For purposes of this Article Twelve, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Convertible Debentures to the payment of all Senior Indebtedness
which may at the time be outstanding; provided, that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment.
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The consolidation of the Company with, or the merger of the Company with or
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of all or substantially all its properties and
assets on a consolidated basis to another Person upon the terms and conditions
provided for in Article Eight hereof shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section 1203 if such
other Person shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions stated in Article Eight hereof.
Nothing in Section 1202 or in this Section 1203 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607 hereof.
SECTION 2404. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Convertible Debentures shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may be, applicable
to such Senior Indebtedness until the principal of (and premium, if any,) and
interest (including Additional Payments, if any) on the Convertible Debentures
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Holders of the Convertible Debentures or the Trustee
would be entitled except for the provisions of this Article Twelve, and no
payment over pursuant to the provisions of this Article Twelve, to or for the
benefit of the holders of such Senior Indebtedness by Holders of the Convertible
Debentures or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Convertible
Debentures, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article Twelve
are and are intended solely for the purposes of defining the relative rights of
the Holders of the Convertible Debentures, on the one hand, and the holders of
such Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Convertible Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Convertible Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Convertible Debentures
the principal of (and premium, if any) and interest (including Additional
Payments, if any) on the Convertible Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Convertible Debentures
and creditors of the Company, as the case may be, other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
the Holder of any Convertible Debenture from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of such Senior
Indebtedness in respect of cash, property or Convertible Debentures of the
Company, as the case may be, received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 603,
and the Holders of the Convertible Debentures, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Convertible Debentures, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, 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
Twelve.
SECTION 2405. Trustee to Effectuate Subordination.
Each Holder of Convertible Debentures by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve and appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes.
SECTION 2406. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment of monies to or by the Trustee in respect of the Convertible
Debentures pursuant to the provisions of this Article Twelve. Notwithstanding
the provisions of this Article Twelve or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Convertible Debentures pursuant to the provision of this Article
Twelve, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 603 hereof, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1206 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including
Additional Payments, if any) on any Convertible Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 603, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of
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Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
on behalf of any such holder or holders. 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 Twelve, 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 right of such Person under this Article Twelve,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 2407. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article Twelve, and no implied covenants or
obligations with respect to the holders of such 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 such Senior Indebtedness and, subject
to the provisions of Section 603, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to Holders of
Convertible Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Twelve and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 2408. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be 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
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of or notice to the Trustee or the Holders of the Convertible Debentures,
without incurring responsibility to the holders of the Convertible Debentures
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Convertible Debentures
to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
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ARTICLE XXVI
Conversion of Convertible Debentures
SECTION 2601. Conversion Rights.
Subject to and upon compliance with the provisions of this Article, the
Convertible Debentures are convertible, at the option of the Holder, at any time
on or before 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Convertible Debentures, whether at
maturity or upon redemption (either at the option of the Company or pursuant to
a Tax Event), into fully paid and nonassessable shares of Company Common Stock
of the Company at an initial conversion rate of 0.4545 shares of Company Common
Stock for each $25 in aggregate principal amount of Convertible Debentures
(equal to a conversion price of $55.00 per share of Company Common Stock),
subject to adjustment as described in this Article Thirteen. A Holder of
Convertible Debentures may convert any portion of the principal amount of the
Convertible Debentures into that number of fully paid and nonassessable shares
of Company Common Stock (calculated as to each conversion to the nearest 1/100th
of a share) obtained by dividing the principal amount of the Convertible
Debentures to be converted by such conversion price. In case a Convertible
Debenture or portion thereof is called for redemption, such conversion right in
respect of the Convertible Debenture or portion so called shall expire at 5:00
p.m. (New York City time) on the Business Day immediately preceding the
corresponding Redemption Date, unless the Company defaults in making the payment
due upon redemption.
SECTION 2602. Conversion Procedures.
(a) In order to convert all or a portion of the Convertible Debentures,
the Holder thereof shall deliver to the Conversion Agent an irrevocable Notice
of Conversion setting forth the principal amount of Convertible Debentures to be
converted, together with the name or names, if other than the Holder, in which
the shares of Company Common Stock should be issued upon conversion and, if such
Convertible Debentures are definitive Convertible Debentures, surrender to the
Conversion Agent the Convertible Debentures to be converted, duly endorsed or
assigned to the Company or in blank. In addition, a holder of Preferred
Securities may exercise its right under the Trust Agreement to convert such
Preferred Securities into Company Common Stock by delivering to the Conversion
Agent an irrevocable Notice of Conversion setting forth the information called
for by the preceding sentence and directing the Conversion Agent (i) to exchange
such Preferred Security for a portion of the Convertible Debentures held by the
Trust (at an exchange rate of $25 liquidation amount of Convertible Debentures
for each Preferred Security) and (ii) to immediately convert such Convertible
Debentures, on behalf of such holder, into Company Common Stock of the Company
pursuant to this Article Thirteen and, if such Preferred Securities are in
definitive form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities are
outstanding,
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the Trust shall not convert any Convertible Debentures except pursuant to a
Notice of Conversion delivered to the Conversion Agent by a holder of Preferred
Securities.
If a Notice of Conversion is delivered on or after the Regular Record
Date and prior to the subsequent Interest Payment Date, the Holder will be
entitled to receive the interest payable on the subsequent Interest Payment Date
on the portion of Convertible Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any Convertible
Debenture which is converted, interest whose Stated Maturity is after the date
of conversion of such Convertible Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Convertible Debentures being converted, which shall be
deemed to be paid in full. If any Convertible Debenture called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Convertible Debenture
shall (subject to any right of the Holder of such Convertible Debenture or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307 and this paragraph) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m. (New York City time) on the day on which the Notice of Conversion
was received (the "Conversion Date") by the Conversion Agent from the Holder or
from a holder of the Preferred Securities effecting a conversion thereof
pursuant to its conversion rights under the Trust Agreement, as the case may be.
The Person or Persons entitled to receive the Company Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Notice of Conversion, a certificate or certificates for the number of
full shares of Company Common Stock issuable upon such conversion, together with
the cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) Subject to any right of the Holder of such Convertible Debenture or
any Predecessor Security to receive interest as provided in the last paragraph
of Section 307 and the second paragraph of Clause (a) of Section 1302, the
Company's delivery upon conversion of the fixed number of shares of Company
Common Stock into which the Convertible Debentures are convertible (together
with the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Company's obligation to pay the principal amount at Maturity of the
portion of Convertible Debentures so converted and any unpaid interest
(including Additional Payments, if any) accrued on such Convertible Debentures
at the time of such conversion.
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(c) No fractional shares of Company Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the last reported sale price of such fractional interest on the date on which
the Convertible Debentures or Preferred Securities, as the case may be, were
duly surrendered to the Conversion Agent for conversion, or, if such day is not
a Trading Day, on the next Trading Day, and the Conversion Agent in turn will
make such payment, if any, to the Holder of the Convertible Debentures or the
holder of the Preferred Securities so converted.
(d) In the event of the conversion of any Convertible Debenture in part
only, a new Convertible Debenture or Convertible Debentures for the unconverted
portion thereof will be issued in the name of the Holder thereof upon the
cancellation thereof in accordance with Section 305.
(e) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Preferred Securities
(in the exchange of Preferred Securities for Convertible Debentures) and as
agent of the Holders of Convertible Debentures (in the conversion of Convertible
Debentures into Company Common Stock), as the case may be, directing it to
effect such conversion transactions. The Conversion Agent is hereby authorized
(i) to exchange Convertible Debentures held by the Trust from time to time for
Preferred Securities in connection with the conversion of such Preferred
Securities in accordance with this Article Thirteen and (ii) to convert all or a
portion of the Convertible Debentures into Company Common Stock and thereupon to
deliver such shares of Company Common Stock in accordance with the provisions of
this Article Thirteen and to deliver to the Trust a new Convertible Debenture or
Convertible Debentures for any resulting unconverted principal amount.
(f) Except as provided in Section 202, all shares of Company Common
Stock delivered upon any conversion of Restricted Securities shall bear a
Restrictive Securities Legend substantially in the form of the legend required
to be set forth on such Convertible Debentures and shall be subject to the
restrictions on transfer provided in such legend and in Section 314 hereof.
Neither the Trustee nor the Conversion Agent shall have any responsibility for
the inclusion or content of any such Restrictive Securities Legend on such
Company Common Stock; provided, however, that the Trustee or the Conversion
Agent shall have provided to the Company or to the Company's transfer agent for
such Company Common Stock, prior to or concurrently with a request to the
Company to deliver to such Conversion Agent certificates for such Company Common
Stock, written notice that the Convertible Debentures delivered for conversion
are Restricted Securities.
SECTION 2603. Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
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(a) In case the Company shall, while any of the Convertible Debentures
are outstanding, (i) pay a dividend or make a distribution with respect to its
Company Common Stock in shares of Company Common Stock, (ii) subdivide its
outstanding shares of Company Common Stock, (iii) combine its outstanding shares
of Company Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Company Common Stock any shares of capital
stock of the Company, the conversion price in effect immediately prior to such
action shall be adjusted so that the Holder of any Convertible Debentures
thereafter surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned immediately
following such action had such Convertible Debentures been converted immediately
prior thereto. An adjustment made pursuant to this Section 1303(a) shall become
effective immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this Section 1303(a), the Holder of
any Convertible Debenture thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes or series of capital stock of
the Company, the Board of Directors (whose determination shall be conclusive and
shall be described in a Board Resolution filed with the Trustee) shall determine
the allocation of the adjusted conversion price between or among shares of such
classes or series of capital stock.
(b) In case the Company shall, while any of the Convertible Debentures
are outstanding, issue rights or warrants to all holders of its Company Common
Stock entitling them (for a period expiring within 45 days after the record date
mentioned in this Section 1303(b)) to subscribe for or purchase shares of
Company Common Stock at a price per share less than the current market price per
share of Company Common Stock (as determined pursuant to 1303(f) below) on such
record date, the conversion price for the Convertible Debentures shall be
adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or purchase would
purchase at such current market price, and of which the denominator shall be the
number of shares of Company Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Company Common
Stock offered for subscription or purchase. Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants. For the purposes of
this subsection, the number of shares of Company Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not issue any rights or warrants in respect of shares of Company
Common Stock held in the treasury of the Company. In case any rights or warrants
referred to in this subsection in respect of which an adjustment shall have been
made shall expire unexercised within 45 days after the same shall have been
distributed or issued by the Company, the conversion price shall be readjusted
at the time of such
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expiration to the conversion price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this Section 1303(c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its
Company Common Stock evidences of its indebtedness, shares of any class or
series of capital stock, cash or assets (including securities, but excluding any
rights or warrants referred to in Section 1303(b), any dividend or distribution
paid exclusively in cash and any dividend or distribution referred to in Section
1303(a)), 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 effectiveness of the conversion price reduction contemplated by this
Section 1303(c) by a fraction of which the numerator shall be the current market
price per share (determined as provided in Section 1303(f)) of the Company
Common Stock on the date fixed for the payment of such distribution (the
"Reference Date") less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), on the Reference Date, of the portion of
the evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Company Common Stock and the denominator
shall be such current market price per share of the Company Common Stock, such
reduction to become effective immediately prior to the opening of business on
the day following the Reference 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 which would then be in effect if such
dividend or distribution had not occurred. If the Board of Directors determines
the fair market value of any distribution for purposes of this Section 1303(c)
by reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per share
of Company Common Stock (determined as provided in Section 1303(f)). For
purposes of this Section 1303(c), any dividend or distribution that includes
shares of Company Common Stock or rights or warrants to subscribe for or
purchase shares of Company Common Stock shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, shares of capital
stock, cash or assets other than such shares of Company Common Stock or such
rights or warrants (making any conversion price reduction required by this
Section 1303(c)) immediately followed by (2) a dividend or distribution of such
shares of Company Common Stock or such rights or warrants (making any further
conversion price reduction required by Section 1303(a) or 1303(b)), except (A)
the Reference Date of such dividend or distribution as defined in this 1303(c)
shall be substituted as (a) "the record date in the case of a dividend or other
distribution," and (b) "the record date for the determination of stockholders
entitled to receive such rights or warrants" and (c) "the date fixed for such
determination" within the meaning of Sections 1303(a) and 1303(b) and (B) any
shares of Company Common Stock included in such dividend or distribution shall
not be deemed outstanding for purposes of computing any adjustment of the
conversion price in Section 1303(a).
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(d) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding all
regular cash dividends, if the annualized amount thereof per share of Company
Common Stock does not exceed 20% of the current market price per share
determined as provided in Section 1303(f) of the Company Common Stock on the
Trading Day immediately preceding the date of declaration of such dividend), 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 effectiveness of the conversion price reduction contemplated by this Section
1303(d) by a fraction of which the numerator shall be the current market price
per share (determined as provided in Section 1303(f)) of the Company Common
Stock on the date fixed for the payment of such distribution less the amount of
cash so distributed and not excluded as provided applicable to one share of
Company Common Stock and the denominator shall be such current market price per
share of the Company Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the date fixed
for the payment of such distribution; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Company Common
Stock is equal to or greater than the current market price per share (as defined
in Section 1303(f)) of the Company Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Convertible Debentures shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each share of the Convertible Debentures immediately prior
to the record date for the distribution of the cash. 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 which would then be in effect if
such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Company's Company Common Stock shall expire and such tender or exchange
offer shall involve the payment by the Company or such Subsidiary of
consideration per share of Company Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) at the last
time (the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds 110% of
the current market price per share (determined as provided in Section 1303(f))
of the Company Common Stock on the Trading Day next succeeding the Expiration
Time, 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 effectiveness of the conversion price reduction contemplated by this
Section 1303(e) by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the current market price per share
(determined as provided in Section 1303(f)) of the Company 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
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of the tender or exchange offer) of all shares validly tendered or exchanged 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 Company Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the current market price per share
(determined as provided in Section 1303(f)) of the Company 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.
(f) For the purpose of any computation under Section 1303(b), 1303(c),
1303(d) or 1303(e), the current market price per share of Company Common Stock
on any date in question shall be deemed to be the average of the daily Closing
Prices for the five consecutive Trading Days selected by the Company commencing
not more than 20 Trading Days before, and ending not later than, the earlier of
the day in question or, if applicable, the day before the "ex" date with respect
to the issuance or distribution requiring such computation; provided, however,
that if another event occurs that would require an adjustment pursuant to
Section 1303(a) through (e), inclusive, the Board of Directors may make such
adjustments to the Closing Prices during such five Trading Day period as it
deems appropriate to effectuate the intent of the adjustments in this Section
1303, in which case any such determination by the Board of Directors shall be
set forth in a Board Resolution and shall be conclusive. For purposes of this
paragraph, the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Company Common Stock trades
regular way on the New York Stock Exchange or on such successor securities
exchange as the Company Common Stock may be listed or in the relevant market
from which the Closing Prices were obtained without the right to receive such
issuance or distribution, and (ii) when used with respect to any tender or
exchange offer, means the first date on which the Company Common Stock trades
regular way on such securities exchange or in such market after the Expiration
Time of such offer.
(g) The Company may make such reductions in the conversion price, in
addition to those required by Sections 1303 (a) through (e), as it considers to
be advisable to avoid or diminish any income tax to holders of Company Common
Stock or rights to purchase Company 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. 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 of the Company shall have made a determination that such reduction
would be in the best interest of the Company, which determination shall be
conclusive. Whenever the conversion price is reduced pursuant to the preceding
sentence, the Company shall mail to holders of record of the Convertible
Debentures 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 will be in effect.
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(h) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this Section 1303(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(i) If any action would require adjustment of the conversion price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder of the Convertible Debentures.
SECTION 2604. Fundamental Change.
(a) In the event that the Company is party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Company
Common Stock), consolidation, sale of all or substantially all of the assets of
the Company, recapitalization or reclassification of Company Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination of Company
Common Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which shares of
Company Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a Transaction
involving a Common Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law at the time of such conversion),
securities, cash or other property, each Preferred Security shall thereafter be
convertible into the kind and, in the case of a Transaction which does not
involve a Fundamental Change, amount of securities, cash and other property
receivable upon the consummation of such Transaction by a holder of that number
of shares of Company Common Stock into which a Preferred Security was
convertible immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Common Stock Fundamental Change, common stock, each
Preferred Security shall thereafter be convertible (in the manner described
therein) into common stock of the kind received by holders of Company Common
Stock (but in each case after giving effect to any adjustment discussed below
relating to a Fundamental Change if such Transaction constitutes a Fundamental
Change). The holders of Preferred Securities will have no voting rights with
respect to any Transaction.
(b) If any Fundamental Change occurs, then the conversion price in
effect will be adjusted immediately after such Fundamental Change as described
below. In addition, in the event of a Common Stock Fundamental Change, each
Preferred Security shall be convertible solely into common stock of the kind
received by holders of Company Common Stock as a result of such Common Stock
Fundamental Change.
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(c) The conversion price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
conversion price of the Preferred Securities will thereupon become the
lower of (A) the conversion price in effect immediately prior to such
Non-Stock Fundamental Change, but after giving effect to any other
prior adjustments effected pursuant to the preceding paragraphs, and
(B) the greater of the Applicable Price or the then applicable
Reference Market Price plus any then-accrued and unpaid distributions
on one Preferred Security; and
(ii) in the case of a Common Stock Fundamental Change, the
conversion price of the Preferred Securities in effect immediately
prior to such Common Stock Fundamental Change, but after giving effect
to any other prior adjustments effected pursuant to the preceding
paragraphs, will thereupon be adjusted by multiplying such conversion
price by a fraction of which the numerator will be the Purchaser Stock
Price and the denominator will be the Applicable Price; provided,
however, that in the event of a Common Stock Fundamental Change in
which (A) 100% of the value of the consideration received by a holder
of Company Common Stock is common stock of the successor, acquirer, or
other third party (and cash, if any, is paid only with respect to any
fractional interests in such common stock resulting from such Common
Stock Fundamental Change) and (B) all Company Common Stock will be have
been exchanged for, converted into, or acquired for common stock (and
cash with respect to fractional interests) of the successor, acquirer,
or other third party, the conversion price of the Preferred Securities
in effect immediately prior to such Common Stock Fundamental Change
will thereupon be adjusted by multiplying such conversion price by a
fraction of which the numerator will be one and the denominator will be
the number of shares of common stock of the successor, acquirer, or
other third party received by a holder of one share of Company Common
Stock as a result of such Common Stock Fundamental Change.
The Company or the Person formed by such consolidation or resulting
from such merger or which acquired such assets or which acquires the Company's
shares, as the case may be, shall make provision in its certificate or articles
of incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Thirteen. The above provisions shall similarly apply to
successive transactions of the foregoing type.
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SECTION 2605. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent and
the transfer agent for the Preferred Securities and the Convertible Debentures;
and
(b) a notice stating the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall as soon as practicable be mailed by
the Company to all record holders of Preferred Securities and the Convertible
Debentures at their last addresses as they appear upon the stock transfer books
of the Company and the Trust.
SECTION 2606. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend payable in
shares of Company Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 1303(c) or 1303(d), or (ii) authorize
a tender or exchange offer that would require an adjustment pursuant to Section
1303(e);
(b) the Company shall authorize the granting to all holders of Company
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or series or of any other rights or warrants;
of any reclassification of Company Common Stock (other than a subdivision or
combination of the outstanding Company Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company shall be required, or of the sale or transfer
of all or substantially all of the assets of the Company or of any compulsory
share exchange whereby the Company Common Stock is converted into other
securities, cash or other property; or
(c) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the stock transfer books the Trust or (2)
shall cause to be mailed to all Holders at their last addresses as they shall
appear in the Security Register, at least 15 days prior to the applicable record
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87
or effective date hereinafter specified, a notice stating (x) the date on which
a record (if any) is to be taken for the purpose of such dividend, distribution,
rights or warrants or, if a record is not to be taken, the date as of which the
holders of Company Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Company Common Stock of record
shall be entitled to exchange their shares of Company Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 2607. Certain Defined Terms.
The following definitions shall apply to terms used in this Article
Thirteen:
(a) "Closing Price" of any Company Common Stock on any day shall mean
the reported last sale price on such day or in case no sale takes place on such
day, the average of the reported closing bid and asked prices in each case on
the NYSE Consolidated Transactions Tape or, if the stock is not listed or
admitted to trading on the NYSE, on the principal national securities exchange
on which such stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any NYSE member firm, selected by
the Debenture Trustee for that purpose.
(b) "Trading Day" shall mean a day on which securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
SECTION 2608. Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of
Company Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Company Common Stock under any such
plan, and the issuance of any shares of Company Common Stock or options or
rights to purchase such shares pursuant to any employee benefit plan or program
of the Company or pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of the date the Convertible
Debentures were first issued, shall not be deemed to constitute an issuance of
Company Common Stock or exercisable, exchangeable or convertible securities by
the Company to which any of the adjustment provisions described above applies.
There shall also be no adjustment of the conversion price in case of the
issuance of any stock (or securities convertible into or exchangeable for stock)
of the Company except as specifically described in this Article Thirteen.
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88
SECTION 2609. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Company Common Stock referred to in Section 1303(c) or
1303(d) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 1303(c)), the Holder of the Convertible
Debentures, upon the conversion thereof subsequent to 5:00 p.m. (New York City
time) on the date fixed for the determination of stockholders entitled to
receive such distribution and prior to the effectiveness of the conversion price
adjustment in respect of such distribution, shall also be entitled to receive
for each share of Company Common Stock into which the Convertible Debentures are
converted, the portion of the shares of Company Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Company Common Stock; provided, however,
that, at the election of the Company (whose election shall be evidenced by a
resolution of the Board of Directors) with respect to all Holders so converting,
the Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors). If any conversion of
Convertible Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Company Common Stock
which the Holder of Convertible Debentures so converted is entitled to receive
in accordance with the immediately preceding sentence, the Company may elect
(such election to be evidenced by a resolution of the Board of Directors) to
distribute to such Holder a due xxxx for the shares of Company Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash or
assets to which such Holder is so entitled, provided, that such due xxxx (i)
meets any applicable requirements of the principal national securities exchange
or other market on which the Company Common Stock is then traded and (ii)
requires payment or delivery of such shares of Company Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets no
later than the date of payment or delivery thereof to holders of shares of
Company Common Stock receiving such distribution.
SECTION 2610. Restrictions on Company Common Stock Issuable Upon Conversion.
(a) Shares of Company Common Stock to be issued upon conversion of a
Convertible Debenture in respect of Restricted Preferred Securities shall bear
such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Company Common Stock to be issued upon conversion of a
Convertible Debenture in respect of Restricted Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred Security,
then the Person in whose name such shares of Company Common Stock are to be
registered must deliver to the Conversion Agent a certificate satisfactory to
the Company and signed by such Person, as to compliance with the restrictions on
transfer applicable to such Preferred Security. Neither the Trustee
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89
nor any Conversion Agent or Registrar shall be required to register in a name
other than that of the Holder shares of Company Common Stock issued upon
conversion of any such Convertible Debenture in respect of such Preferred
Securities not so accompanied by a properly completed certificate.
SECTION 2611. Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of any Convertible Debenture to
determine whether any facts exist which may require any adjustment of the
conversion price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind of account) of any shares of Company Common Stock
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Convertible Debenture; and neither the Trustee nor
any Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Company Common Stock or stock certificates or other securities or property upon
the surrender of any Convertible Debenture for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of the
Company contained in Article Ten or this Article Thirteen.
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ARTICLE XXVIII
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 2801. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Convertible Debenture, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Convertible Debentures or implied therefrom; and that any and
all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Convertible Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Convertible Debentures.
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91
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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92
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Central Parking Corporation
By:
--------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chairman of the Board and Chief
Executive Officer
- 00 -
00
Xxxxx Xxxx of Texas, National Association,
as Trustee
By:
---------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF CONVERTIBLE DEBENTURE
[FACE OF CONVERTIBLE DEBENTURE]
[Include if Convertible Debenture is in global form:
THIS CONVERTIBLE DEBENTURE IS A GLOBAL CERTIFICATE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS CONVERTIBLE DEBENTURE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CONVERTIBLE DEBENTURE
REGISTERED, AND NO TRANSFER OF THIS CONVERTIBLE DEBENTURE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[Include if Convertible Debenture is in global form and The Depository
Trust Company is the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE CONVERTIBLE DEBENTURES EVIDENCED HEREBY AND THE COMMON STOCK
ISSUABLE UPON THEIR CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES
95
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH TRANSFEROR
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER ACQUIRING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION COMPLYING WITH RULE 144A UNDER THE SECURITIES ACT, (2) IN
AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES
AND OTHER JURISDICTIONS.
- 2 -
96
Central Parking Corporation
5 1/4% Convertible Subordinated Debenture Due 2028
No._________ $___________
CUSIP No.
Central Parking Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Central Parking Finance Trust, or
registered assigns, the principal sum of Dollars ($ ) on
April 1, 2028 and to pay interest thereon from [ ] 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to deferral as set
forth in the Indenture), in arrears, on January 1, April 1, July 1 and October 1
(each an "Interest Payment Date") of each year, commencing July 1, 1998, until
the principal thereof is paid or made available for payment, and they shall be
paid to the Person in whose name the Convertible Debenture is registered at 5:00
p.m. (New York City time) on the regular record date for such interest
installment, which shall be the March 15, June 15, September 15 and December 15
next preceding such Interest Payment Date (the "Regular Record Date").
Reference is hereby made to the further provisions of this Convertible
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Convertible Debenture shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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97
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Central Parking Corporation
By:
--------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
and Chairman of the Board
[Seal]
Attest:
----------------------
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98
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures referred to in the
within-mentioned Indenture.
Dated: Chase Bank of Texas, National Association,
as Trustee
By:
----------------------------------------
Authorized Signatory
- 5 -
99
[FORM OF REVERSE OF CONVERTIBLE DEBENTURE]
This Convertible Debenture is one of a duly authorized issue of
securities of the Company designated as its 5 1/4% Convertible Subordinated
Debenture Due 2028 (herein called the "Convertible Debentures"), in aggregate
principal amount of $103,092,775 (or up to $113,402,050 if the over-allotment
option is exercised by the Trust in accordance with the terms and provisions of
the Purchase Agreement), issued and to be issued under an Indenture, dated as of
March 18, 1998 (herein called the "Indenture"), between the Company and Chase
Bank of Texas, National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Convertible
Debentures, and of the terms upon which the Convertible Debentures are, and are
to be, authenticated and delivered. The terms of the Convertible Debentures
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S.C. ss. 77aaa-77bbbb) ("TIA") as in
effect on the date of the Indenture. The Convertible Debentures are subject to,
and qualified by, all such terms, certain of which are summarized hereon, and
holders are referred to the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provision of this Convertible
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Convertible Debenture at the times, place and rate, and in the
coin or currency, herein prescribed or to convert this Convertible Debenture as
provided in the Indenture. All terms used in this Convertible Debenture which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture. The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture.
(1) Interest. The Convertible Debentures shall bear interest at the
rate of 5 1/4% per annum, from March 13, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, payable quarterly (subject to deferral as set forth herein), in arrears,
on January 1, April 1, July 1 and October 1 (each an "Interest Payment Date") of
each year, commencing July 1, 1998, until the principal thereof is paid or made
available for payment, and they shall be paid to the Person in whose name the
Convertible Debenture is registered at 5:00 p.m. (New York City time) on the
regular record date for such interest installment, which shall be the March 15,
June 15, September 15 and December 15 next preceding such Interest Payment Date
(the "Regular Record Date"). Interest will compound quarterly and will accrue at
the rate of 5 1/4% per annum on any interest installment in arrears for more
than one quarter or during an extension of an interest payment period as set
forth below.
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100
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest in computed, will be computed on the
basis of the actual number of days elapsed per 90-day quarter. In the event that
any date on which interest is payable on the Convertible Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Convertible Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company shall pay as additional interest
("Additional Interest") on the Convertible Debentures held by the Property
Trustee, such amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying any such taxes,
duties, assessments or other governmental charges will be not less than the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
The principal of and interest on the Convertible Debentures shall be
payable [insert, if global security is issued - to the Depositary Trust Company
or its nominee] [insert, if securities in definitive form are issued - at the
corporate office of the Indenture Trustee in the City of New York or at the
office or agency of the Paying Agent in the United States maintained for such
purpose] in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
(i) check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Securities
Register, provided that proper transfer instructions have been received by the
Regular Record Date.
(2) Option to Extend Interest Payment Period. The Company shall have
the right at any time during the term of the Convertible Debentures to defer
interest payments (including Additional Payments) from time to time by extending
the interest payment period for successive periods (each, an "Extension Period")
not exceeding 20 consecutive quarters for each such period; provided, no
Extension Period may extend
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101
beyond the maturity date of the Convertible Debentures. At the end of each
Extension Period, the Company shall pay all interest then accrued and unpaid
(including Additional Interest) together with interest thereon compounded
quarterly at the rate specified for the Convertible Debentures to the extent
permitted by applicable law ("Compounded Interest"); provided, that during any
Extension Period, the Company shall (i) not declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (B) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (C) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (ii) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures (except by conversion into or exchange for shares of its capital
stock) and (iii) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity date of the Convertible Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements. No interest
during an Extension Period shall be due and payable. Notwithstanding anything to
the contrary, the Company shall not have the right at any time to defer any
Additional Interest, including by extending the interest payment period.
If the Property Trustee is the sole Holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrative Trustees, the Property Trustee
and the Trustee of its selection of such Extension Period at least one Business
Day prior to the earlier of (i) the date the distributions on the Preferred
Securities are payable or (ii) if the Preferred Securities are listed on the New
York Stock Exchange or other stock exchange or quotation system, the date the
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities of the record date or the date such distributions are payable, but in
any event not less than 10 Business Days prior to such record date.
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102
If the Property Trustee is not the sole holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Convertible Debentures and the Trustee written
notice of its selection of such Extension Period at least 10 Business Days prior
to the earlier of (i) the next succeeding Interest Payment Date or (ii) if the
Preferred Securities are listed on the New York Stock Exchange or other stock
exchange or quotation system, the date the Company is required to give notice to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Convertible Debentures on the record or payment date of such
related interest payment, but in any event not less than two Business Days prior
to such record date.
The quarter in which any notice is given pursuant to paragraphs second
and third of this Section 2 shall be counted as one of the 20 quarters permitted
in the maximum Extension Period permitted under paragraph one of this Section 2.
(3) Paying Agent and Security Registrar. The Trustee will act as Paying
Agent, Security Registrar and Conversion Agent. The Company may change any
Paying Agent, Security Registrar, co-registrar or Conversion Agent without prior
notice. The Company or any of its Affiliates may act in any such capacity.
(4) Redemption. The Company shall have the right to redeem the
Convertible Debentures, in whole or in part, at any time or from time to time
after April 3, 2001 upon not less than 30 nor more than 60 days' notice, at the
optional redemption prices (expressed as a percentage of the principal amount of
Convertible Debentures to be redeemed) shown below, plus any accrued and unpaid
interest (including Additional Payments, if any) to the Redemption Date, if
redeemed during the 12-month period beginning April 3:
Percentage of
Principal
Year Amount
---- -------------
2001 .................................. 103.00%
2002 .................................. 102.25%
2003 .................................. 101.50%
2004 .................................. 100.75%
2005 and thereafter ................... 100.00%
If the Company has deferred interest payments, all unpaid interest must
be paid in cash prior to redemption. Any redemption pursuant to this Section
1101 shall be made pursuant to the provisions of Sections 1103 through 1108
hereof.
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103
The Convertible Debentures are subject to redemption in whole (but not
in part), at any time within 90 days, if a Tax Event (as defined in the Trust
Agreement) shall occur and be continuing, at a redemption price equal to 100% of
the principal amount thereof plus accrued but unpaid interest (including
Additional Payments, if any) to the Redemption Date. On and after the Redemption
Date, interest ceases to accrue on the Convertible Debentures or portions of
them called for redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Convertible Debentures to be redeemed, at such Holder's
address appearing in the Security Register. The Convertible Debentures in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. In the event of a redemption of less than all of the
Convertible Debentures, the Convertible Debentures will be chosen for redemption
by the Trustee in accordance with the Indenture.
If this Convertible Debenture is redeemed subsequent to a Regular
Record Date with respect to any Interest Payment Date specified above and on or
prior to such Interest Payment Date, then any accrued interest will be paid to
the person in whose name this Convertible Debenture is registered at the close
of business on such record date.
(5) Sinking Fund. The Convertible Debentures are not entitled to the
benefit of any sinking fund.
(6) Subordination. The payment of the principal of, premium, if any,
and interest (including Additional Payments, if any) on all Convertible
Debentures is subordinated and junior in right of payment to the prior payment
in full of all existing and future Senior Indebtedness, whether outstanding at
the date of this Indenture or thereafter incurred. Each holder, by accepting a
Convertible Debenture, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
"Senior Indebtedness" means in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement of any letter
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104
of credit, banker's acceptance, security purchase facility or similar credit
transaction, (v) all obligations of the type referred to in clauses (i) through
(iv) above of other Persons for the payment of which such obligor is responsible
or liable as obligor, guarantor or otherwise, and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other Persons secured by
any lien on any property or asset of such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any such indebtedness
that is by its terms subordinated to or pari passu with the Convertible
Debentures and (2) any indebtedness between or among such obligor or its
affiliates, including all other debt securities and guarantees in respect of
those debt securities issued to any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities or
other securities which rank pari passu with, or junior to, the Preferred
Convertible Debentures. Such Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
(7) Conversion. The Holder of any Convertible Debenture has the right,
exercisable at any time on or before 5:00 p.m. (New York City time) on the
Business Day immediately preceding the date of repayment of such Convertible
Debentures, whether at maturity or upon redemption (either at the option of the
Company or pursuant to a Tax Event), to convert the principal amount thereof (or
any portion thereof that is an integral multiple of $25) into fully paid and
nonassessable shares of Company Common Stock of the Company at an initial
conversion rate of 0.4545 shares of Company Common Stock for each $25 in
aggregate principal amount of Convertible Debentures (equal to a conversion
price of $55.00 per share of Company Common Stock), subject to adjustment under
certain circumstances as set forth in Section 1303. The number of shares
issuable upon conversion of a Convertible Debenture is determined by dividing
the principal amount of the Convertible Debenture converted by the conversion
price in effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest. The
outstanding principal amount of any Convertible Debenture shall be reduced by
the portion of the principal amount thereof converted into shares of Company
Common Stock.
To convert a Convertible Debenture, a Holder must (i) complete and sign
a conversion notice substantially in the form attached hereto, (ii) surrender
the Convertible Debenture to a Conversion Agent, (iii) furnish appropriate
endorsements or transfer documents if required by the Security Registrar or
Conversion Agent and (iv) pay any transfer or similar tax, if required. If a
Notice of Conversion is delivered on or after the Regular Record Date and prior
to the subsequent Interest Payment Date, the Holder will be
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105
entitled to receive the interest payable on the subsequent Interest Payment Date
on the portion of Convertible Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any Convertible
Debenture which is converted, interest whose Stated Maturity is after the date
of conversion of such Convertible Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Convertible Debentures being converted, which shall be
deemed to be paid in full. If any Convertible Debenture called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Convertible Debenture
shall (subject to any right of the Holder of such Convertible Debenture or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307 and this paragraph) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
(8) Registration Rights. The holders of the Preferred Securities, the
Convertible Debentures issuable in respect of the Preferred Securities, the
shares of Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures, and the Guarantee (collectively, the
"Registrable Securities") are entitled to the benefits of a Registration Rights
Agreement, dated as of March 18, 1998, among Central Parking Finance Trust, the
Company and the Initial Purchasers (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed for the
benefit of the holders of Registrable Securities that (i) it will, at its cost,
use its best efforts within 60 days after the date of original issuance of the
Registrable Securities, to file a shelf registration statement (the "Shelf
Registration Statement") with the Commission with respect to the resales of the
Registrable Securities, (ii) it will use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within 150
days after the date of issuance of the Registrable Securities and (iii) it will
use its best efforts to maintain such Shelf Registration Statement continuously
effective under the Securities Act until two years after the date of original
issuance of the Preferred Securities (or such earlier date as the holders of
Registrable Securities are able to sell all Registrable Securities immediately
without restriction, whether pursuant to Rule 144(k) under the Securities Act or
any successor rule thereto or otherwise) (the "Effectiveness Period"). The Trust
and the Company will be permitted to suspend the use of the prospectus (which is
a part of the Shelf Registration Statement) in connection with sales of
Registrable Securities by holders during certain periods of time under certain
circumstances relating to pending corporate developments relating to the Company
and public filings with the Commission and similar events.
- 12 -
106
If (i) on or prior to 60 days following the date of original issuance
of the Registrable Securities, a Shelf Registration Statement has not
been filed with the Commission, (ii) on or prior to the 150th day
following the original issuance of the Registrable Securities, such
Shelf Registration Statement has not been declared effective, or (iii)
the Company or the Trust has not filed an amendment as set forth in
Sections 2(b)(ii) and 3(j) of the Registration Rights Agreement (each
such event a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Convertible Debentures and, accordingly,
additional distributions will accrue on the Preferred Securities, from
and including the day following such Registration Default until such
time as such Shelf Registration Statement is filed or such Shelf
Registration Statement is declared effective, as the case may be.
Liquidated Damages will be paid quarterly in arrears (subject to the
Company's ability to defer payment of Liquidated Damages during any
Extension Period), with the first quarterly payment due on the first
Interest Payment Date following the date on which such Liquidated
Damages begin to accrue, and will accrue at a rate per annum equal to
an additional 0.25% of the principal amount or liquidation amount, as
applicable, to and including the 60th day following such Registration
Default and 0.50% thereof from and after the 61st day following such
Registration Default. In the event that during the Effectiveness Period
the Shelf Registration Statement ceases to be effective for more than
90 consecutive days or any 120 days, whether or not consecutive, during
any 12-month period then the interest rate borne by the Debentures and
the distribution rate borne by the Preferred Securities will each
increase by an additional 0.50% per annum from such 91st or 121st day,
as applicable, of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until the earlier of such
time as (i) the Shelf Registration Statement again becomes effective or
(ii) the Effectiveness Period expires.
(9) Registration, Transfer, Exchange and Denominations. As provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Convertible Debenture is registrable in the Security Register, upon
surrender of this Convertible Debenture for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Convertible
Debentures, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
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107
The Convertible Debentures are issuable only in registered form without
coupons in denominations of $25 and integral multiples thereof. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Prior to due presentment of
this Convertible Debenture for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Convertible Debenture is registered as the owner hereof for all
purposes, whether or not this Convertible Debenture be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary. In the event of redemption or conversion of this Convertible Debenture
in part only, a new Convertible Debenture or Convertible Debentures for the
unredeemed or unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
(10) Persons Deemed Owners. Except as provided in the Indenture, the
registered Holder of a Convertible Debenture may be treated as its owner for all
purposes.
(11) Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of
Convertible Debentures entitled to the money must look to the Company for
payment unless an abandoned property law designates another Person and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
(12) Defaults and Remedies. The Convertible Debentures shall have the
Events of Default as set forth in Section 501 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in aggregate principal amount of the then outstanding Convertible Debentures by
notice to the Company and the Trustee may declare all the Convertible Debentures
to be due and payable immediately.
The Holders of a majority in principal amount of the Convertible
Debentures then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Convertible Debentures except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Convertible Debentures issued under the Indenture may direct the Trustee in its
exercise of any trust or power. The Convertible Debentures are unsecured general
obligations of the
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108
Company. The Company must furnish annually compliance certificates to the
Trustee. The above description of Events of Default and remedies is qualified by
reference to, and subject in its entirety by, the more complete description
thereof contained in the Indenture.
(13) Amendments, Supplements and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Convertible Debentures under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Convertible Debentures at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Convertible
Debentures at the time Outstanding, on behalf of the Holders of all the
Convertible Debentures, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Convertible
Debenture shall be conclusive and binding upon such Holder and upon all future
Holders of this Convertible Debenture and of any Convertible Debenture issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Convertible Debenture.
(14) Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Convertible
Debentures and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
(15) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Convertible Debentures or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Convertible Debentures by accepting a Convertible
Debenture waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Convertible Debentures.
(16) Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THEREOF.
(17) Authentication. The Convertible Debentures shall not be valid
until authenticated by the manual signature of an authorized officer of the
Trustee or an authenticating agent.
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109
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Convertible
Debenture to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Convertible Debenture on the books of the Company. The
agent may substitute another to act for him or her.
Date: _______________________
------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Debenture)
Signature Guarantee:* _______________________
----------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Convertible Debentures
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Convertible Debentures Exchange Act of 1934, as amended.)
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110
[Include the following if the Convertible Debenture bears a Restricted
Securities Legend --
In connection with any transfer of any of the Convertible Debentures evidenced
by this certificate, the undersigned confirms that such Convertible Debentures
are being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer;
or
(2) [ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933 (as amended) (the "Securities
Act"); or
(3) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act; or
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act; or
(5) [ ] transferred pursuant to an effective Registration Statement
under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Convertible Debentures evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3) or (4) is checked, the Trustee may require, prior to registering any such
transfer of the Convertible Debentures such legal opinions, certifications and
other information as the Company has reasonably requested in writing and
directed the Trustee to require confirmation 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, such as the exemption provided
by Rule 144 under such Act; provided, further, that after the date that a Shelf
Registration Statement under the Securities Act has been filed and so long as
such Shelf Registration Statement continues to be effective, the Trustee may
only permit transfers for which box (5) has been checked.
----------------------
Signature
Signature Guarantee:*
------------------------
Stock Exchange Medallion Program (SEMP); or (iv) in such other
guarantee programs acceptable to the Trustee.
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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111
---------------------------------- ----------------------------------
Signature must be guaranteed Signature
--------------------------------------------------------------------------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Convertible Debenture for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------------------- ----------------------------------
NOTICE: To be executed by an executive
officer]
- 18 -
112
NOTICE OF CONVERSION
To: Chase Bank of Texas, National Association
The undersigned owner of this Convertible Debenture hereby irrevocably
exercises the option to convert this Convertible Debenture, or the portion below
designated, into common stock of Central Parking Corporation (the "Company")
(the "Company Common Stock") in accordance with the terms of the Indenture,
between the Company and Chase Bank of Texas, National Association, as Trustee,
and directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and the Convertible Debenture, agrees to be
bound by the terms of the Registration Rights Agreement relating to the Company
Common Stock issuable upon conversion of the Convertible Debenture.
Date: ________________
Number of Convertible Debentures to be converted ($25 or integral multiples
thereof): ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
------------------------------------------
(Sign exactly as your name appears on the
the Convertible Debenture) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
------------------------------------------
------------------------------------------
------------------------------------------
Signature Guarantee:*_____________________
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Convertible Debentures
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Convertible Debentures Exchange Act of 1934, as amended.)
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