Draft--3/7/98
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DURA AUTOMOTIVE SYSTEMS, INC.
to
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
------------------------------
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF MARCH __, 1998
------------------------------
____% CONVERTIBLE SUBORDINATED DEBENTURES
DUE MARCH __, 2028
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Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Junior Convertible
Subordinated Indenture whether or not physically contained therein) and the
Junior Convertible Subordinated Indenture, dated as of March __, 1998.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
---------------- ---------
Section 310(a)(1), (2) and (5). . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.13
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
Section 312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(a), 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(c)
Section 313(a). . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a), 7.3(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(c)
Section 314(a)(1), (2),(3) and (4). . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
Section 315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(c)
(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.14
Section 316(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.13
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
---------------- ---------
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10.3
Section 318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 COMPLIANCE CERTIFICATE AND OPINIONS. . . . . . . . . . . 10
SECTION 1.3 FORMS OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . 11
SECTION 1.4 ACTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY . . . . . . . . . . 12
SECTION 1.6 NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . . 12
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT. . . . . . . . . . . . 13
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS . . . . . . . . 13
SECTION 1.9 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . 13
SECTION 1.10 SEPARABILITY CLAUSE. . . . . . . . . . . . . . . . . . . 13
SECTION 1.11 BENEFITS OF INDENTURE. . . . . . . . . . . . . . . . . . 13
SECTION 1.12 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.13 NON-BUSINESS DAYS. . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 FORMS GENERALLY. . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.2 FORM OF FACE OF DEBENTURE. . . . . . . . . . . . . . . . 14
SECTION 2.3 FORM OF REVERSE OF DEBENTURE . . . . . . . . . . . . . . 15
SECTION 2.4 ADDITIONAL PROVISIONS REQUIRED IN GLOBAL DEBENTURE . . . 22
SECTION 2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. . . . . 22
SECTION 2.6 INITIAL ISSUANCE TO PROPERTY TRUSTEE . . . . . . . . . . 22
ARTICLE 3
THE DEBENTURES
SECTION 3.1 AMOUNT OF DEBENTURES . . . . . . . . . . . . . . . . . . 22
SECTION 3.2 DENOMINATIONS. . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING . . . . . 23
SECTION 3.4 TEMPORARY DEBENTURES . . . . . . . . . . . . . . . . . . 23
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE. . . . . . . . . . . 24
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES . . . . 25
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . . . . 26
SECTION 3.8 PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . 27
SECTION 3.9 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.10 COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . 27
SECTION 3.11 DEFERRALS OF INTEREST PAYMENT DATES. . . . . . . . . . . 27
SECTION 3.12 RIGHT OF SET-OFF . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.13 AGREED TAX TREATMENT . . . . . . . . . . . . . . . . . . 28
SECTION 3.14 CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.15 GLOBAL SECURITY. . . . . . . . . . . . . . . . . . . . . 29
i
PAGE
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . 30
SECTION 4.2 APPLICATION OF TRUST MONEY . . . . . . . . . . . . . . . 31
ARTICLE 5
REMEDIES
SECTION 5.1 DEBENTURE EVENTS OF DEFAULT. . . . . . . . . . . . . . . 32
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT . . . 33
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . 34
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF
DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.6 APPLICATION OF MONEY COLLECTED . . . . . . . . . . . . . 36
SECTION 5.7 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 36
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . 37
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . 37
SECTION 5.11 DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . 37
SECTION 5.12 CONTROL BY HOLDERS . . . . . . . . . . . . . . . . . . . 38
SECTION 5.13 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 38
SECTION 5.14 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 39
SECTION 5.15 WAIVER OF USURY, STAY, OR EXTENSION LAWS . . . . . . . . 39
ARTICLE 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES. . . . . . . . . . . 40
SECTION 6.2 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . 41
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . 41
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES . 42
SECTION 6.5 MAY HOLD DEBENTURES. . . . . . . . . . . . . . . . . . . 42
SECTION 6.6 MONEY HELD IN TRUST. . . . . . . . . . . . . . . . . . . 42
SECTION 6.7 COMPENSATION AND REIMBURSEMENT . . . . . . . . . . . . . 43
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS. . . . . . . . . 43
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. . . . . . . . . 43
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. . . . 44
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR . . . . . . . . . 45
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . 46
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. . . . . . . . . . . 46
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH NAMES AND ADDRESSES OF HOLDERS. . . . 48
ii
PAGE
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SECTION 7.2 PRESERVATION OF INFORMATION: COMMUNICATIONS TO HOLDERS. 48
SECTION 7.3 REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . 48
SECTION 7.4 REPORTS BY COMPANY . . . . . . . . . . . . . . . . . . . 49
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS . . 49
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . 50
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . 50
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. . . . . 51
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES . . . . . . . . . . 52
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 53
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. . . . . . . . . . . 53
SECTION 9.6 REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES . . . 53
ARTICLE 10
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST . . . . . . . 53
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 53
SECTION 10.3 MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST . . . . 54
SECTION 10.4 PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . 55
SECTION 10.5 STATEMENT AS TO COMPLIANCE . . . . . . . . . . . . . . . 55
SECTION 10.6 WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . 55
SECTION 10.7 ADDITIONAL SUMS. . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.8 ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . 56
SECTION 10.9 PAYMENT OF EXPENSES OF THE TRUST . . . . . . . . . . . . 57
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . 57
SECTION 11.2 SELECTION OF DEBENTURES TO BE REDEEMED . . . . . . . . . 58
SECTION 11.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . 58
SECTION 11.4 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . 59
SECTION 11.5 DEBENTURES PAYABLE ON REDEMPTION DATE. . . . . . . . . . 59
SECTION 11.6 DEBENTURES REDEEMED IN PART. . . . . . . . . . . . . . . 60
SECTION 11.7 MANDATORY REDEMPTION . . . . . . . . . . . . . . . . . . 60
SECTION 11.8 OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . . . . 60
SECTION 11.9 EXCHANGE OF TRUST SECURITIES FOR DEBENTURES. . . . . . . 61
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 DEBENTURES SUBORDINATE TO SENIOR DEBT. . . . . . . . . . 62
iii
PAGE
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SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.. . . . . 62
SECTION 12.3 PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF
DEBENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 12.4 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT . . . . . . . . . 63
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. . . . . . . . . . . . . 64
SECTION 12.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT. . . . . 64
SECTION 12.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. . . . . . . 65
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. . . . . . . . . . . 65
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. . . . . . . . . . 65
SECTION 12.10 NOTICE TO TRUSTEE. . . . . . . . . . . . . . . . . . . . 65
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT . . . . 66
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS . . . . . . . . . . . . . . . . . 66
SECTION 12.14 ARTICLE APPLICABLE TO PAYING AGENTS. . . . . . . . . . . 66
SECTION 12.15 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT. . . . . 66
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 CONVERSION RIGHTS. . . . . . . . . . . . . . . . . . . . 67
SECTION 13.2 CONVERSION PROCEDURES. . . . . . . . . . . . . . . . . . 67
SECTION 13.3 EXPIRATION OF CONVERSION RIGHTS. . . . . . . . . . . . . 70
SECTION 13.4 CONVERSION PRICE ADJUSTMENTS . . . . . . . . . . . . . . 70
SECTION 13.5 FUNDAMENTAL CHANGE . . . . . . . . . . . . . . . . . . . 74
SECTION 13.6 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE. . . . . . . . 76
SECTION 13.7 PRIOR NOTICE OF CERTAIN EVENTS . . . . . . . . . . . . . 76
SECTION 13.8 CERTAIN ADDITIONAL RIGHTS. . . . . . . . . . . . . . . . 77
SECTION 13.9 RESTRICTIONS ON CLASS A COMMON STOCK
ISSUABLE UPON CONVERSION . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.10 TRUSTEE NOT RESPONSIBLE FOR DETERMINING
CONVERSION PRICE OR ADJUSTMENTS. . . . . . . . . . . . . . . . . . 78
iv
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of March __,1998
between DURA AUTOMOTIVE SYSTEMS, INC., a Delaware corporation (the "COMPANY")
having its principal office at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxx
00000-0000, and THE FIRST NATIONAL BANK OF CHICAGO, an Illinois banking
corporation ("FIRST CHICAGO"), as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its __% Convertible Subordinated
Debentures (the "DEBENTURES") of substantially the tenor hereinafter provided
which evidence loans made to the Company of the proceeds from the issuance by
Dura Automotive Systems Capital Trust, a Delaware business trust (the "TRUST"),
of preferred trust interests in the Trust (the "PREFERRED SECURITIES") and
common interests in the Trust (the "COMMON SECURITIES"), and to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered.
All things necessary to make the 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 Debentures
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. For all purpose of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; and
(d) the words "HEREIN" and "HEREUNDER" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"ADDITIONAL INTEREST" means the interest, if any, that shall accrue on any
interest on the Debentures that is in arrears for more than one interest payment
period or not paid during any Extension Period, which in either case (to the
extent permitted by law) shall accrue at the stated rate per annum specified or
determined as specified in such Debenture and compounded quarterly.
"ADDITIONAL SUMS" has the meaning specified in Section 10.7.
"ADDITIONAL TAXES" means the sum of any additional taxes, duties and other
governmental charges to which the Trust has become subject from time to time as
a result of a Tax Event.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; PROVIDED, HOWEVER, that an Affiliate of the
Company shall be deemed not to include the Trust to which Debentures have been
issued. For the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"APPLICABLE PRICE" means (c) in the case of a Non-Stock Fundamental Change
in which the holders of Common Stock receive only cash, the amount of cash
received by the holder of one share of Common Stock and (ii) in the event of any
other Non-Stock Fundamental Change or any Common Stock Fundamental Change, the
average of the Closing Prices for Common Stock during the ten trading days prior
to and including the record date for the determination of the holders of 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 Common Stock
shall have the right to receive such securities, cash, or other property, in
each case as adjusted in good faith by the Company to appropriately reflect any
of the events referred to in Section 13.4.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Debentures.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
"BUSINESS DAY" means any day other than a Saturday or Sunday or a day on
which banking institutions in the City of Chicago are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under the
Trust Agreement, is closed for business.
"CLASS A COMMON STOCK" means the Class A Common Stock, $.01 par value per
share, of the Depositor.
"CLASS B COMMON STOCK" means the Class B Common Stock, $.01 par value per
share, of the Depositor.
"CLOSING PRICE" means on any day 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,
the Nasdaq National Market or, if the stock is not listed or admitted to trading
on such Exchanges, on any other 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 Trustee for
that purpose.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"COMMON SECURITIES" has the meaning specified in the first recital of this
Indenture.
"COMMON STOCK" means the Class A Common Stock and the Class B Common Stock.
"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 consideration received by holders of Common Stock consists of
common stock that for each of the ten consecutive trading days prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, the date on which
the holders of Common Stock shall have the right to receive such common stock,
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 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.
3
"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 REQUEST" and "COMPANY ORDER" means, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board,
its Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"CONVERSION AGENT" has the meaning specified in Section 13.2.
"CONVERSION DATE" has the meaning specified in Section 13.2.
"CONVERSION PRICE" has the meaning specified in Section 13.1.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered which office at the date hereof is located at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000.
"CURRENT MARKET PRICE" means for any day the last reported sale price,
regular way, on such day of Common Stock, or, if no sale takes place on such
day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Consolidated Transactions
Tape, or, if Common Stock is not listed or admitted to trading on the NYSE on
such day, on the principal national securities exchange on which Common Stock is
listed or admitted to trading, if Common Stock is listed on a national
securities exchange, or the Nasdaq National Market, or, if Common Stock is not
quoted or admitted to trading on such quotation system, on the principal
quotation system on which Common Stock may be listed or admitted to trading or
quoted, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average of the closing bid and
asked prices of Common Stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any NYSE member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
"DEBENTURES" OR "DEBENTURE" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"DEBT" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
4
business); (v) every capital lease obligation of such Person, and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible for or liable, directly or indirectly,
as obligor or otherwise.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITARY" means, with respect to the Debentures issuable or issued in
whole or in part in the form of one or more Global Debentures, the Person
designated as Depositary by the Company (or any successor thereto).
"DOLLAR" means the currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
"DEBENTURE EVENTS OF DEFAULT" has the meaning specified in Article 5.
"EXPIRATION TIME" has the meaning specified in Section 13.4(e).
"EXTENSION PERIOD" has the meaning specified in Section 3.11.
"FUNDAMENTAL CHANGE" means the occurrence of any Transaction or event in
connection with a plan pursuant to which all or substantially all of 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, HOWEVER, in the
case of a plan involving more than one 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 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
consideration that a holder of Common Stock received in such Transaction or
event as a result of which more than 50% of Common Stock shall have been
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property.
"GLOBAL DEBENTURE" means a Debenture in the form prescribed in Section 2.4
evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"GUARANTEE" means the guarantee by the Company of distributions on the
Preferred Securities of the Trust to the extent provided in the Guarantee
Agreement, substantially in the form attached hereto as Annex C, as amended from
time to time.
"HOLDER" means a Person in whose name a Debenture is registered in the
Securities 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.
5
"INTEREST PAYMENT DATE" means as to the Debentures the Stated Maturity of
an installment of interest on such Debentures.
"INTEREST RATE" means the rate of interest specified or determined as
specified in each Debenture as being the rate of interest payable on such
Debenture.
"INVESTMENT COMPANY EVENT" means, in respect of the Trust, the receipt by
the Property Trustee, on behalf of the Trust of an Opinion of Counsel, rendered
by a law firm having a national tax and securities practice (which opinion shall
not have been rescinded by such law firm), to the effect that, as a result of
the occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "CHANGE IN 1940 ACT LAW"), there is more than
an insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities of the Trust.
"JUNIOR SUBORDINATED PAYMENT" has the meaning specified in Section 12.2.
"MATURITY" when used with respect to the Debentures, means the date on
which the principal of the Debentures become due and payable as herein provided,
whether at the Stated Maturity or by declaration of acceleration, call or
redemption or otherwise.
"1940 ACT" means the Investment Company Act of 1940, as amended.
"NON BOOK-ENTRY PREFERRED SECURITIES" has the meaning specified in Section
3.15.
"NON-STOCK FUNDAMENTAL CHANGE" means any Fundamental Change other than a
Common Stock Fundamental Change.
"NOTICE OF CONVERSION" means the notice given by a Holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Securities for Debentures and to convert such Debentures into
Class A Common Stock on behalf of such holder.
"NOTICE OF DEFAULT" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"OFFICERS' CERTIFICATE" means a certificate signed by (i) the Chairman,
Chief Executive Officer, President or a Vice President, and by (ii) the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, the Trust, or the Trustee, but who may be an employee thereof,
and who shall be reasonably acceptable to the Trustee.
"OUTSTANDING" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture, except:
6
(i) Debentures theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary amount has
been theretofore irrevocably deposited with the Trustee or any Paying Agent
in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Section 3.6, or which have been converted into Class A Common
Stock pursuant to Section 13.1, unless proof satisfactory to the Trustee is
presented that any Debentures are held by Holders in whose hands such
Debentures are valid, binding and legal obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be fully
protected in conclusively relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
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 Debentures and that the pledgee
is not the Company or any other obligor upon the Debentures or any Affiliate of
the Company or such other obligor. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Debentures, if any, known by the Company to be owned or held by
or for the account of the Company, or any other obligor on the Debentures or any
Affiliate of the Company or such obligor, and, subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Debentures not listed therein are Outstanding for the purpose of any such
determination.
"PAYING AGENT" means the Trustee or any Person authorized by the Company to
pay the principal of or interest on any Debentures on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PREDECESSOR DEBENTURE" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture, and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"PREFERRED SECURITIES" has the meaning specified in the first recital of
this Indenture.
"PROCEEDING" has the meaning specified in Section 12.2.
7
"PROPERTY TRUSTEE" means, in respect of the Trust, the commercial bank or
trust company identified as the "Property Trustee" in the Trust Agreement,
solely in its capacity as Property Trustee of the Trust under the Trust
Agreement and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as therein provided.
"PURCHASED SHARES" has the meaning specified in Section 13.4(e).
"PURCHASER STOCK PRICE" means, with respect to any Common Stock Fundamental
Change the average of the Closing Prices for common stock received in such
Common Stock Fundamental Change for the ten consecutive trading days prior to
and including the record date for the determination of the holders of common
stock entitled to receive such common stock or if there is no such record date,
the date on which the holders of common stock shall have the right to receive
such common stock, as adjusted in good faith by the Company to appropriately
reflect any of the events referred to in Section 13.4.
"REDEMPTION DATE," when used with respect to any Debenture to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE" has the meaning specified in Section 11.3(b).
"REFERENCE DATE" has the meaning specified in Section 13.4(c).
"REFERENCE MARKET PRICE" initially means $______ (which is an amount equal
to 66 2/3% of the reported last sale price for Class A Common Stock on March __,
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 Debentures.
"REGULAR RECORD DATE" means for the interest payable on any Interest
Payment Date the fifteenth day (whether or not a Business Day) next preceding
such Interest Payment Date.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
officer assigned to the Trustee's Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Indenture, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"RIGHTS" has the meaning specified in Section 13.2(g).
"SECURITIES REGISTER" AND "SECURITIES REGISTRAR" have the respective
meanings specified in Section 3.5.
"SENIOR DEBT" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to
8
the Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt of the Company, whether incurred on or prior to the
date of this Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such obligations are not superior in right of payment to the
Debentures or to other Debt which is PARI PASSU with, or subordinated to, the
Debentures, PROVIDED, HOWEVER, that Senior Debt shall not be deemed to include
(a) any Debt of the Company which when incurred and, without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, was without
recourse to the Company, (b) any Debt of the Company to any of its Subsidiaries,
(c) Debt to any employee of the Company, (d) any liability for taxes, (e) Debt
or other monetary obligations to trade creditors created or assumed by the
Company or any of its Subsidiaries in the ordinary course of business in
connection with the obtaining of goods, materials or services and (f) the
Debentures.
"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY" when used with respect to the Debentures or any
installment of principal thereof or interest thereon means the date specified in
the Debentures as the fixed date on which the principal of the Debentures or
such installment of interest is due and payable.
"SUBSIDIARY" means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the outstanding shares of voting stock. For
purposes of this definition, "VOTING STOCK" means stock which has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"TAX EVENT" means the receipt by the Property Trustee on behalf of the
Trust of an Opinion of Counsel, rendered by a law firm having a national tax and
securities practice (which opinion shall not have been rescinded by such law
firm), to the effect that, as a result of any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities of the Trust and does not pertain to the use of the proceeds of the
issuance of the Debentures, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Company on the Debentures is not, or
within 90 days of the date thereof, will not be, deductible, in whole or in
part, for United States Federal income tax purposes or (iii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a DE MINIMIS
amount of other taxes, duties or other governmental charges.
"TRANSACTION" has the meaning specified in Section 13.5(a).
"TRUST" has the meaning specified in the first recital of this Indenture.
9
"TRUST AGREEMENT" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, as amended from
time to time.
"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 or
include each Person who is then a Trustee hereunder if at any time there is more
than one such Person.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15
U.S.C.Sections 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture.
"TRUST SECURITIES" means the Common Securities and Preferred Securities.
"UNDERWRITERS" with respect to the Preferred Securities, means Xxxxxx X.
Xxxxx & Co. Incorporated and Xxxxx Xxxxxxx Inc.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated March __,
1998 by and among Dura Automotive Systems Capital Trust, Dura Automotive
Systems, Inc. and the Underwriters.
"VICE PRESIDENT" when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "VICE PRESIDENT."
SECTION 1.2 COMPLIANCE CERTIFICATE AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including
covenants, compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificates provided pursuant to Section 10.5) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
10
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 FORMS 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 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 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to 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 is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 Person acting in other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same,
may also be proved in any other
11
manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine.
(d) The ownership of Debentures shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture
issued upon the transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done 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 Debenture.
(f) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action
under this Indenture by vote or consent. Except as otherwise provided
herein, such record date shall be the later of 30 days prior to the first
solicitation of such consent or vote or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 7.1 prior to such
solicitation. If a record date is fixed, those persons who were Holders at
such record date (or their duly designated proxies), and only those
persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any such action with regard to any particular Debenture may do
so with regard to all or any part of the principal amount of such 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 1.5 NOTICES, ETC. TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.1 hereof)
hereunder 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 1.6 NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register on the date such
notice is mailed, which shall be not later than the latest date, and not earlier
than the earliest date, prescribed
12
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this Indenture 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 former provision shall be deemed to apply.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the 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 1.11 BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Debentures, express or implied, shall give to any Person, other than the
parties thereto, any Paying Agent and their successors and assigns and the
Holders of the Debentures, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.12 GOVERNING LAW. This Indenture and the Debentures shall
be governed by and construed in accordance with the laws of the State of
Illinois without regard to its principles of conflicts of laws.
SECTION 1.13 NON-BUSINESS DAYS. Except as otherwise provided in
Section 11.8, in any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Debentures)
payment of interest or principal payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) with the same force and effect as if made on the
Interest Payment Date or Redemption Date or at the Stated Maturity, PROVIDED,
HOWEVER, that no interest shall accrue for the period from and after such
Interest Payment Date or Redemption Date or Stated Maturity.
13
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 FORMS GENERALLY. The Debentures and the Trustee's
certificate of authentication shall be in substantially the forms sets forth in
this Article and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debentures,
as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Debentures may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Debentures may be
listed, all as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
SECTION 2.2 FORM OF FACE OF DEBENTURE.
____% Convertible Subordinated Debenture due __________ __, 2028
No. 1 $
Dura Automotive Systems, Inc., a corporation organized and existing under
the laws of Delaware (the "COMPANY," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to _____________________, or registered assigns, the
principal sum of _______________ on __________ __, 2028 and to pay interest on
said principal sum from __________ __, 1998 or from the most recent interest
payment date (each such date, an "INTEREST PAYMENT DATE") on which interest has
been paid or duly provided for, quarterly plus Additional Interest, if any until
the principal hereof is paid or duly provided for or made available for payment
subject to deferral as set forth herein in arrears on (_____ 1, _____ 1, ______
1 and ______ 1) of each year, commencing March __, 1998 at the rate of __% per
annum, until the principal hereof shall have become due and payable.
Reference is hereby made to the further provisions of this 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 Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
14
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
By:
------------------------
SECTION 2.3 FORM OF REVERSE OF DEBENTURE. This Debenture is one of
a duly authorized issue of Debentures of the Company (the "DEBENTURES") limited
to the aggregate principal amount of $51,500,000 ($59,225,000 if the
Underwriters' over-allotment option is exercised in full), issued and to be
issued under a Junior Convertible Subordinated Indenture, dated as of March __,
1998 (the "INDENTURE"), between the Company and The First National Bank of
Chicago, as Trustee (herein called the "TRUSTEE," which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. All
terms used in this Debenture that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. For periods less than a full month,
interest shall be computed on the actual number of elapsed days over 360 days.
In the event that any date on which interest is payable on this Debenture is not
a Business Day, then payment of the interest 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) with the same force and effect as if made
on the date the payment was originally payable. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in the Indenture)
is registered at the close of business on the Regular Record Date, for such
interest installment which shall be the date which is the Business Day next
preceding such Interest Payment Date. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Debenture (or one or more Predecessor Debentures) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Debentures not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for up to 20 consecutive quarters with respect to each deferral period
(each such deferral period, an "EXTENSION PERIOD"), during which periods the
Company shall have the right not to make payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest, if any, thereon to the
extent permitted by applicable law); PROVIDED that during any such Extension
Period, the Company will not, and will not permit any Subsidiary to (a)
15
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any shares of the Company's
capital stock or (b) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of the Company that rank PARI PASSU with or
junior to the Debentures (other than (i) any dividend, redemption, liquidation,
interest, principal or guarantee payment by the Company where the payment is
made by way of securities (including capital stock) that rank PARI PASSU with or
junior to the securities on which such dividend, redemption, interest, principal
or guarantee payment is being made, (ii) redemptions or purchases of any rights
pursuant to a stockholder rights agreement and the declaration of a dividend of
such rights or the issuance of preferred stock under such plan in the future,
(iii) payments under the Guarantee, (iv) purchases of Common Stock related to
the issuance of Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (v) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's capital
stock and (vi) 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). Prior to the termination
of any such Extension Period, the Company may further extend the interest
payment period, PROVIDED that no Extension Period shall exceed 20 consecutive
quarters or extend beyond the Stated Maturity of this Debenture. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Company shall give the Trustee, the Property Trustee and the Administrative
Trustees notice of its selection of an Extension Period at least one Business
Day prior to the earlier of (i) the record date for the date the distributions
on the Preferred Securities (or if no Preferred Securities are outstanding, for
the date interest on the Debentures) would have been payable except for the
election to begin such Extension Period or (ii) the date the Property Trustee of
the Dura Automotive Systems Capital Trust is (or if no Preferred Securities are
outstanding, the Debenture Trustee is) required to give notice to NYSE or other
applicable self-regulatory organizations or to holders of such Preferred
Securities (or, if no Preferred Securities are outstanding, to the Holders of
such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made to the Depositary Trust Company or its nominee and 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 (a) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Securities Register or (b) by wire transfer in immediately available funds
at such place and to such account as may be designated by the Person entitled
thereto as specified in the Securities Register.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt (as defined in the Indenture), and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf
to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in
16
the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
At any time on or after ___________ __, _____, the Company may, at its
option, subject to the terms and conditions of Article 11 of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, at the
Redemption Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture shall be
exchangeable for Preferred Securities in accordance with Section 11.9 of the
Indenture or, in certain circumstances, redeemable by the Company in accordance
with Section 11.8 of the Indenture.
Subject to the terms and conditions set forth in Article 13 of the
Indenture, this Debenture is convertible, at the option of the Holder, hereof
into shares of Class A Common Stock.
If a Debenture Event of Default shall occur and be continuing, the
principal of the Debentures may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Debentures. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Debentures at the time Outstanding, on behalf of the Holders of
all 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 shall be conclusive and binding upon
the Holder of this Debenture and upon all future Holders of this Debenture and
of any Debenture issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if a
Debenture Event of Default shall occur and be continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), PROVIDED that, if a Debenture Event of Default
shall occur and be continuing, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debentures fail to declare the principal
of all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then outstanding
shall have such right by a notice in writing to the Company and the Trustee; and
upon any such
17
declaration such principal amount (or specified amount) of and the accrued
interest (including any Additional Interest) on all the Debentures shall become
immediately due and payable, PROVIDED that the payment of principal and interest
(including any Additional Interest) on such Debentures shall remain subordinated
to the extent provided in Article 12 of the Indenture.
No reference herein to the Indenture and no provision of this 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 premium, if any) and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture is registrable in the Securities Register,
upon surrender of this Debenture for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
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 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 Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States Federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES THEREOF.
18
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(i) or (we) assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint --------------------------------------------------------
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the other side of
this Security)
Date:
------------------------------
Signature Guarantee: *
--------------------------------------------------
In connection with any transfer of any of the Debentures evidenced by this
certificate, the undersigned confirms that such Debentures are being:
--------------------
* 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.
19
CHECK ONE BOX BELOW
(1) / / exchanged for the undersigned's own account without transfer; or
(2) / / transferred pursuant to an available exemption from the
registration requirements of the Securities Act of 1933; or
(3) / / transferred pursuant to an effective Registration Statement under
the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Debentures evidenced by this certificate in the name of any person other
than the registered Holder thereof; PROVIDED, HOWEVER, that if box (3) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities 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 of 1933.
-----------------------------------
Signature
Signature Guarantee:*
------------------------------ ------------------------------
Signature must be guaranteed Signature
--------------------------------------------------------------------------------
Dated:
------------------------ ------------------------------
NOTICE: To be executed by an executive
officer
----------------------
* 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.
20
NOTICE OF CONVERSION
To: Dura Automotive Systems, Inc.
The undersigned owner of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or the portion below designated, into
Class A Common Stock of DURA AUTOMOTIVE SYSTEMS, INC. in accordance with the
terms of the Indenture referred to in this Debenture, 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.
Date:
------------, ----
in whole
--
Portions of Debenture to be
in part converted ($50 or integral multiples
-- thereof):
$
---------------------
---------------------------------------------
Signature (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 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.
21
SECTION 2.4 ADDITIONAL PROVISIONS REQUIRED IN GLOBAL DEBENTURE.
Any Global Debenture issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3 bear a legend in substantially the following
form:
"This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
form of Trustee's Certificate of Authentication shall be as follows:*
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
Authorized Signatory
Dated:
-----------------------"
SECTION 2.6 INITIAL ISSUANCE TO PROPERTY TRUSTEE. The 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
distribution coupons.
ARTICLE 3
THE DEBENTURES
SECTION 3.1 AMOUNT OF DEBENTURES. The aggregate principal amount
of Debentures which may be authenticated and delivered under this Indenture is
$51,500,000 ($59,225,000 except if the Underwriters' over-allotment option is
exercised in full) for Debentures authenticated and delivered upon registration
of, transfer of, or in exchange for, or in lieu of, other Debentures pursuant to
Sections 3.4, 3.5 or 3.6.
SECTION 3.2 DENOMINATIONS. The Debentures shall be in registered
form without coupons and shall be issuable in denominations of $25 and any
integral multiple thereof.
--------------------
* Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
22
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Debentures shall be executed on behalf of the Company by its President or one of
its Vice Presidents under its corporate seal reproduced or impressed thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Debentures may be manual or facsimile.
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 Debentures or did not
hold such offices at the date of such Debentures. Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debentures may be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Securities to or upon
Company Order without any further action by the Company. Debentures may be
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("PROCEDURES") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to instructions of the Company or a duly authorized agent,
which instructions shall be promptly confirmed in writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Debenture shall be conclusive evidence,
and the only evidence, that such Debenture has been duly authenticated and
delivered hereunder.
SECTION 3.4 TEMPORARY DEBENTURES. Pending the preparation of
definitive Debentures, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Debentures which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Debentures in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debentures may
determine, as evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company designated for the purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Debentures, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Debentures of
authorized denominations. Until so exchanged, the temporary Debentures shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debentures.
23
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Debentures and of transfers of Debentures.
Such register is herein sometimes referred to as the "SECURITIES REGISTER." The
Trustee is hereby appointed "SECURITIES REGISTRAR" for the purpose of
registering Debentures and transfers of Debentures as herein provided.
Upon surrender for registration or transfer of any Debenture at the office
or agency of the Company designated for that 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 Debentures of any authorized
denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Debentures surrendered upon such
transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
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
transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall be
exchangeable pursuant to this Section 3.5 for Debentures registered in the names
of Persons other than the Depositary for such Debenture or its nominee only if
(a) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Debenture, and the Company shall not have
appointed a successor depositary within 90 days after such notice, (b) at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and the Company shall not have
appointed a successor depositary within 90 days, (c) the Company executes and
delivers to the Trustee a Company Order that the Global Debenture shall be so
exchangeable or (d) there shall have occurred and be continuing a Debenture
Event of Default. The Global Debenture shall be exchangeable for Debentures
registered in such names as such Depositary shall direct.
Notwithstanding any other provisions in this Indenture, the Global
Debenture may not be transferred except as a whole by the Depositary with
respect to the Global Debenture to a nominee
24
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Debenture
during a period beginning at the opening of business 15 days before the day of
selection for redemption of Debentures pursuant to Article 11 and ending at the
close of business on the day of mailing of notice of redemption or (b) to
transfer or exchange any Debenture so selected for redemption in whole or in
part, except, in the case of any Debenture to be redeemed in part, any portion
thereof not to be redeemed.
Upon any distribution of the 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 9.1(h) to provide
for transfer procedures with respect to the Debentures substantially similar to
those contained in the Trust Agreement to the extent applicable in the
circumstances existing at the time of such distribution.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES. If
any mutilated Debenture is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Debenture and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Debenture, and
(b) such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of actual notice to the Company or the Trustee
that such Debenture has been acquired by a bona fide purchaser, the Company
shall execute and upon the receipt of a Company Order requesting authentication
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debenture, a new Debenture bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new 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 Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen 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 Debentures duly issued hereunder.
25
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 Debentures.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall be paid to the Person in whose
name that Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date, except that interest payable on
the Stated Maturity of the Debentures shall be paid to the Person to whom
principal is paid.
Any interest on the Debentures which is payable, but is not timely paid or
duly provided for, on an Interest Payment Date ("DEFAULTED INTEREST"), shall
forthwith cease to be payable to the registered Holder on the 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 Debentures (or their respective Predecessors
Debentures) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on the Debentures and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the 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 of the Debentures at the address of such Holder as
it appears in the Securities 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Debentures (or their respective Predecessor Debentures) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Debentures are not listed), if, after notice given by the Company to
26
the Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
SECTION 3.8 PERSONS DEEMED OWNERS. The Company, the Trustee, the
Paying Agent and any agent of the Company or the Trustee or the Paying Agent may
treat the Person in whose name any Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest or premium on such Debenture and for all other purposes
whatsoever, whether or not such 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 3.9 CANCELLATION. All Debentures surrendered for payment,
redemption, conversion transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Debentures and
Debentures surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver or cause to be
delivered to the Trustee for cancellation any Debentures previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debentures so delivered shall be promptly canceled by
the Trustee. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debentures shall be destroyed by the
Trustee and upon written request, the Trustee shall deliver to the Company a
certificate of such destruction.
SECTION 3.10 COMPUTATION OF INTEREST. Interest on the Debentures
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 DEFERRALS OF INTEREST PAYMENT DATES. The Company shall
have the right, at any time during the term of the Debentures, so long as no
Debenture Event of Default has occurred and is continuing, from time to time to
extend the interest payment period for the Debentures for up to 20 consecutive
quarters with respect to each deferral period (each, an "EXTENSION PERIOD")
during which periods the Company shall have the right to not make payments of
interest on any Interest Payment Date, and at the end of such Extension Period
the Company shall pay all interest then accrued and unpaid thereon (together
with Additional Interest thereon, if any, at the rate specified for the
Debentures, to the extent permitted by applicable law), PROVIDED, HOWEVER, that
during any such Extension Period, the Company shall not, and shall cause any
Subsidiary not to, (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock or (b) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of the
Company that rank PARI PASSU with or junior to the Debentures (other than (i)
any dividend, redemption, liquidation, interest, principal or guarantee payment
by the Company where the payment is made by way of securities (including capital
stock) that rank PARI PASSU with or junior to the securities on which such
27
dividend, redemption, interest, principal or guarantee payment is being made,
(ii) redemptions or purchases of any rights pursuant to a stockholder rights
agreement and the declaration of a dividend of such rights or the issuance of
preferred stock under such plan in the future, (iii) payments under the
Guarantee, (iv) purchases of Common Stock related to the issuance of Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (v) as a result of a reclassification of the Company's capital stock
or the exchange or conversion of one series or class of the Company's capital
stock for another series or class of the Company's capital stock and (vi) 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). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
PROVIDED that no such Extension Period shall exceed 20 consecutive quarters or
extend beyond the Stated Maturity of the Debentures. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new Extension Period,
subject to the above requirements. No interest, including Additional Interest,
if any, shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the Trustee, the Property Trustee and the
Administrative Trustees written notice of its selection of such Extension Period
at least one Business Day prior to the earlier of (i) the record date for the
date the distributions on the Preferred Securities of the Trust (or if no,
Preferred Securities are outstanding, for the date interest on the Debentures)
would have been payable except for the election to begin such Extension Period
and (ii) the date the Property Trustee (or, if no Preferred Securities are
outstanding, the Trustee) is required to give notice to NYSE or other applicable
self-regulatory organization or to holders of such Preferred Securities (or, if
no Preferred Securities are outstanding, to the Holders of such Debentures) of
such record date, but in any event not less than one Business Day prior to such
record date. Such notice shall specify the period selected.
The Trustee shall promptly give notice of the Company's selection of such
Extension Period to the Holders of the outstanding Debentures and Preferred
Securities.
SECTION 3.12 RIGHT OF SET-OFF. Notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of the Debenture
to the extent the Company has theretofore made, or is concurrently on the date
of such payment making, a payment relating to the Debentures under the
Guarantee.
SECTION 3.13 AGREED TAX TREATMENT. Each Debenture issued hereunder
shall provide that the Company and, by its acceptance of a Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Debenture agree that for United States Federal,
state and local tax purposes it is intended that such Debenture constitute
indebtedness.
SECTION 3.14 CUSIP NUMBERS. The Company in issuing the Debentures
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use such "CUSIP" number 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 number either as printed on the Debentures
28
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 3.15 GLOBAL SECURITY.
(a) In connection with distribution of Debentures to holders of the
Preferred Securities in connection with the involuntary or voluntary
dissolution of the Trust, including a dissolution following the occurrence
of a Special Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global certificate
in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Debentures (a "GLOBAL DEBENTURE"), to be
registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary, or its custodian, for
crediting to the accounts of its participants pursuant to the
procedures of the Depositary. The Company upon any such presentation
shall execute a Global Debenture in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery in
accordance with this Indenture; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the 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 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 Securities Registrar for transfer or reissuance at which time such
Non-Book Entry Preferred Security certificates will be canceled and a
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 canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance
with this Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
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(c) If (a) the Depositary notifies the Company that it is unwilling
or unable to continue as a depositary for such Global Debenture and no
successor depositary shall have been appointed within 90 days by the
Company, (b) 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 within 90 days by the Company, (c) the Company,
in its sole discretion, determines that such Global Debenture shall be so
exchangeable or (d) there shall have occurred and be continuing a Debenture
Event of Default with respect to such Debentures, as the case may be, the
Company will execute, and, subject to Article 3 of this Indenture, the
Trustee, upon written notice from the Company and receipt of a Company
Order, will authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, upon a
Debenture Event of Default that has occurred and is continuing or in the
event the Company determines that the Debenture shall no longer be
represented by a Global Debenture, the Company will execute, and subject to
Section 3.5 of this Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company and a Company
Order, will authenticate and make available for delivery, the Debentures in
definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the
Global Debenture in exchange for such Global Debenture. Upon the exchange
of the Global Debenture for such Debentures in definitive registered form
without coupons, in authorized denominations, the Global Debenture shall be
canceled by the Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture 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 in writing. The Trustee shall deliver such Debentures
to the Depositary for delivery to the Persons in whose names such
Debentures are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Debentures, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest (including Additional Interest, if any) on the Debentures and other
rights, duties and obligations of the Holders as beneficiaries hereof with
respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights and obligations of the Trustee hereunder), 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
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(i) all Debentures theretofore authenticated and delivered (other
than (i) Debentures which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii)
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 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Debentures not theretofore delivered to the Trustee
for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year of the date of deposit or are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of written notice of redemption to the
Trustee in the name, and at the expense, of the Company, and the
Company has deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the
currency or currencies in which the Debentures are payable
sufficient (without regard to investment of such amount
deposited) to pay and discharge the entire indebtedness on the
Debentures not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit
or to the Stated Maturity; or
(c) have been redeemed or tendered for conversion; or
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY. Subject to the provisions
of the last paragraph of Section 10.3, all money deposited with the Trustee
pursuant to Section 4.1 shall be held in trust and applied by it, in accordance
with the provisions of the 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 premium, if any) and interest for whose payment such money or
obligations have been
31
deposited with or received by the Trustee; PROVIDED, HOWEVER, such moneys need
not be segregated from other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1 DEBENTURE EVENTS OF DEFAULT. "DEBENTURE EVENT OF
DEFAULT," wherever used herein with respect to the Debentures, means any one of
the following events that has occurred and is continuing (whatever the reason
for such Debenture Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes due
and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium, if any,
on) the Debentures when due whether at Stated Maturity, upon redemption by
declaration or otherwise;
(c) failure on the part of the Company duly to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Company contained in the Debentures or contained in this Indenture
(other than a covenant or agreement which has been expressly included in
this Indenture solely for the benefit of the Company) and continuance for
such failure for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that such
notice is a "NOTICE OF DEFAULT" hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail, or to the Company
and the Trustee by a Holder or Holders of at least 25% in aggregate
principal amount of the Debentures at the time Outstanding or the holder or
holders of at least 25% in aggregate liquidation amount of the Preferred
Securities;
(d) failure by the Company to issue Class A Common Stock upon an
appropriate election by the Holder or Holders of the Debentures to convert
the Debentures into shares of Class A Common Stock;
(e) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of the Company under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
32
(f) the institution by the Company of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of
its property or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated as
bankrupt, or the taking of corporate action by the Company in furtherance
of any such action.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
a Debenture Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Debentures may declare the principal amount of all the
Debentures to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), PROVIDED that, if a Debenture
Event of Default occurs and is continuing, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debentures fail
to declare the principal of all the Debentures to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of the
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee, and upon any such declaration such
principal amount (or specified amount) of and the accrued interest (including
any Additional Interest) on all the Debentures shall become immediately due and
payable, PROVIDED that the payment of principal and interest (including any
Additional Interest) on the Debentures shall remain subordinated to the extent
provided in Article 12.
At any time after such a declaration of acceleration with respect to
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding 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 installments of interest (including any
Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on) the Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures;
(iii) to the extent that payment of such interest is lawful,
interest (including any Additional Interest) upon overdue installments
of interest at the rate borne by the Debentures; and
33
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; or
(b) all Debenture Events of Default that shall have occurred and been
continuing with respect to Debentures, other than the non-payment of the
principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13. If
the holders of a majority in aggregate principal amount of the Outstanding
Debentures fail to rescind and annul such declaration and its consequences,
the holders of a majority in liquidation amount of the Preferred Securities
then outstanding shall have such right.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any installment of interest
(including any Additional Interest) on the Debentures 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 (and premium,
if any, on) the Debentures whether at the Stated Maturity thereof upon
redemption by declaration or otherwise, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of the Debentures,
the whole amount then due and payable on the Debentures for principal (and
premium, if any) and interest (including any Additional Interest),
including, to the extent that payment of such interest shall be lawful,
interest on any overdue principal (and premium, if any) and on any overdue
installments of interest (including any Additional Interest) at the rate
borne by the Debentures, and, in addition thereto, all amounts owing the
Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgement or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Debentures, wherever
situated.
If a Debenture 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 of the Debentures 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 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment,
34
composition or other judicial proceeding relative to the Company or any other
obligor upon the Debentures or the property of the Company or of such other
obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal (or
premium, if any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim (including a claim for reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) for the whole amount of principal (and premium, if
any) and interest (including any Additional Interest) owing and unpaid
in respect to the Debentures and to file such other papers or
documents as may be necessary or advisable and to take any and all
actions as are authorized under the Trust Indenture Act in order to
have the claims of the Holders and any predecessor to the Trustee
under Section 6.7 and, of the Holders allowed in any such judicial
proceedings; and
(ii) in particular, to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same in accordance with Section 5.6; and
(b) 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 for
distribution in accordance with Section 5.6, 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 to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIM WITHOUT POSSESSION OF
DEBENTURES. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgement
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
35
SECTION 5.6 APPLICATION OF MONEY COLLECTED. Any money or property
collected or to be applied by the Trustee with respect to the Debentures
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 or
property on account of principal (or premium, if any) or interest (including any
Additional Interest), upon presentation of the Debentures and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: to the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7,
SECOND: to the payment of the amounts then due and unpaid upon the
Debentures for principal (and premium, if any) and interest (including any
Additional Interest), 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 the Debentures for principal (and
premium, if any) and interest (including any Additional Interest), respectively;
and
THIRD: the balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS. No Holder of the Debentures,
including a holder of Preferred Securities acting to enforce the rights of the
Property Trustee as a Holder of the Debentures pursuant to Section 5.8 of the
Trust Agreement, shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Debenture Event of Default;
(b) if the Trust is not the sole holder of the Outstanding Debentures,
the Holders of not less than 25% in principal amount of the Outstanding
Debentures shall have made written request to the Trustee to institute
proceedings in respect of such Debenture 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 Debentures;
it being understood and intended that no one or more of such 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
36
prejudice the rights of any other Holders of the Debentures, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture,
the Holder of any Debenture shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7) interest (including any Additional Interest) on such
Debenture on the Maturity or to convert such Debenture in accordance with
Article 13 and to institute suit for the enforcement of any such payment and
right to convert, and such right shall not be impaired without the consent of
such Holder. For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Indenture and
the Trust Agreement, upon a Debenture Event of Default that has occurred and is
continuing specified in Sections 5.1(a) or 5.1(b), any holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Company, for enforcement of payment to such holder of the principal amount of
(or premium, if any) or interest on Debentures having a principal amount equal
to the liquidation amount of the Preferred Securities of such holder (a "DIRECT
ACTION"). 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 (or premium, if any) or interest on the
Debentures held by the Trust or the Property Trustee. In connection with any
such Direct Action, the rights of the Company will be subrogated to the rights
of any holder of the Preferred Securities to the extent of any payment made by
the Company to such holder of Preferred Securities as a result of such Direct
Action. Except as set forth in this Section, the holders of Preferred
Securities shall have no right to execute any right or remedy available to the
Holders of or in respect of, the Debentures.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such 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 the Company, the Trustee and the Holder shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission
of the Trustee or of any Holder of the Debentures to exercise any right or
remedy accruing upon any Debenture
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Event of Default that shall have occurred and be continuing shall impair any
such right or remedy, or constitute a waiver of any such Debenture Event of
Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS. The Holders of a majority in
aggregate principal amount of the Outstanding 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, with respect to the Debentures, PROVIDED that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to the Debentures and, if all or part of the Debentures
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Debentures entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date, PROVIDED,
that, unless the Holders of a majority in principal amount of the Outstanding
Debentures shall have joined in such notice prior to the day which is 90 days
after such record date, such notice shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.12.
SECTION 5.13 WAIVER OF PAST DEFAULTS. Subject to Section 9.2
hereof, the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures affected by any past default may on behalf of
the Holders of all the Debentures waive any past default hereunder with
respect to Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures (unless such
default has been cured or waived and a
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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 which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Debenture;
PROVIDED, HOWEVER, that if the 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
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 Debenture
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. If the Holders of a
majority in aggregate principal amount of the Outstanding Debentures fail to
waive such Debenture Event of Default, the holders of a majority in aggregate
liquidation amount of Preferred Securities shall have such right. No such
rescission shall affect any subsequent default or impair any right consequent
thereon. The provisions of this Section 5.13 shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act, and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Indenture and the
Debentures, as permitted by the Trust Indenture Act.
SECTION 5.14 UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Debenture by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as
Trustee the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Debentures, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest (including
any Additional Interest) on the Debentures on or after the Maturity of the
Debentures or to convert a Debenture in accordance with Article 13. The
provisions of this Section 5.14 shall be in lieu of Section 315(e) of the
Trust Indenture Act, and such Section 315(e) of the Trust Indenture Act is
hereby expressly excluded from this Indenture and the Debentures, as
permitted by the Trust Indenture Act.
SECTION 5.15 WAIVER OF USURY, 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 usury, 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 Company (to the
extent that it may lawfully do so) hereby
39
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of a Debenture Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case a Debenture Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct except that:
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture.
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(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2 NOTICE OF DEFAULTS. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Securities Register,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on Debenture, the Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Debentures; and PROVIDED, FURTHER,
that, except in the case of any default of the character specified in Section
5.1(c), no such notice to Holders of the Debentures shall be given until at
least 30 days after the occurrence thereof For the purpose of this Section, the
term "DEFAULT" means any event which is, or after notice or lapse of time or
both would become, a Debenture Event of Default.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, Debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate and an
Opinion of Counsel;
(d) the Trustee may consult with counsel 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;
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(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 is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it;
(g) 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, indenture, Debenture or other paper or document, but the Trustee in
its discretion may make such inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on any part of any agent, custodian,
nominee or attorney appointed with due care by it hereunder; and
(i) in the event that the Trustee is also acting as a Paying Agent,
Authenticating Agent, Conversion Agent, and/or Securities Registrar
hereunder, the rights and protections afforded to the Trustee pursuant to
this Article 6 shall also be afforded to such Paying Agent, Authenticating
Agent, Conversion Agent, and/or Securities Registrar.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The recitals contained herein and in the 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 Debentures. The Trustee shall not be accountable for the use or
application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5 MAY HOLD DEBENTURES. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Debentures and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar or such
other agent.
SECTION 6.6 MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability of interest on any
money received by it hereunder except as otherwise agreed with the Company.
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SECTION 6.7 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder in such amounts as the Company
and the Trustee shall agree from time to time (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel);
and
(c) to indemnify the Trustee and its officers, directors and employees
for, and to hold it harmless against, any loss, liability or expense
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel) incurred without negligence or bad faith,
arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, 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. This Indemnification shall survive the termination of this
Agreement or the earlier resignation or removal of the Trustee.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Debentures
on all money or property held or collected by the Trustee except assets held in
trust to pay principal and premium, if any, or interest on particular Debentures
pursuant to Section 4.1(a)(ii)(B), or pursuant to any redemption pursuant to
Article 11 hereof if monies have been deposited for such redemption and notice
has been given and the Redemption Date has passed. Such lien shall survive the
satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services after a Debenture
Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the
Trustee Indenture Act. The Trust Agreement and the Guarantee shall be deemed to
be specifically described in this Indenture for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be:
43
(a) a corporation organized and doing business under the laws of the
United States of America or of any State, Territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized under
such laws to exercise corporate trust powers, and subject to supervision or
examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
to the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee hereunder.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(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 Debentures, delivered to
the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Debenture for at least six months, or
44
(ii) the Trustee shall cease to be eligible under Section 6.9 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 as 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 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of
himself and all other similarly situated Holders, 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
with respect to the Debentures, 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 with respect to the Debentures shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Debentures delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Debenture for at least six months may, subject to Section 5.14, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of the Debentures as their name and addresses appear in the
Securities Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, but, on the written
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 such
successor Trustee all property and money held by such retiring Trustee
hereunder.
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(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, power and trusts referred
to in paragraph (a) of this Section.
(c) 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 6.12 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 of 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 Debentures 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 Debentures so
authenticated, and in case any Debentures shall not have been authenticated,
any successor to the Trustee may authenticate such Debentures either in the
name of any predecessor Trustee or in the name of such successor Trustee, and
in all cases the certificate of authentication shall have the full force
which it is provided anywhere in the Debentures or in this Indenture that the
certificate of the Trustee shall have.
SECTION 6.13 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 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).
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT. The Trustee
may appoint an Authenticating Agent or Agents, as described and with the
powers and obligations conferred by this Section 6.14 ("AUTHENTICATING AGENT
OR AGENTS"), with respect to the Debentures which shall be authorized to act
on behalf of the Trustee to authenticate the Debentures issued upon exchange,
registration of transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Debentures by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, or of any State, Territory or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an
46
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, PROVIDED such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of the
Debentures. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment is made pursuant to this Section, the Debentures may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Debentures referred to in the within mentioned
indenture.
---------------------------
---------------------------
As Trustee
By:
------------------------
As Authenticating Agent
By:
------------------------
47
Authorized Officer
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH NAMES AND ADDRESSES OF HOLDERS. The
Company will furnish or cause to be furnished to the Trustee (unless the Trustee
is acting as the Securities Registrar):
(a) quarterly at least five Business Days before each Interest Payment
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of each such date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished.
SECTION 7.2 PRESERVATION OF INFORMATION: COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures, and
the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
(c) Every Holder of 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 the disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act, at the times and in the manner provided pursuant
thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted within 60 days after December 31
in each calendar year, commencing with December 31, 1998.
48
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange or self
regulatory organization of which the Trustee has received notice by the
Company upon which the Debentures are listed and also with the Commission.
The Company will notify the Trustee in writing whenever the Debentures are
listed on any stock exchange or self-regulatory organization.
SECTION 7.4 REPORTS BY COMPANY. The Company shall file with the
Trustee and with 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 in
the Trust Indenture Act, PROVIDED that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall continue to file with the Commission and
provide the Trustee and Holders with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Securities Exchange Act of 1934. The Company also shall comply with the other
provisions of Trust Indenture Act Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing under
the laws of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on all the Debentures and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed and shall have provided for conversion rights
in accordance with Article 13;
(b) immediately after giving effect to such transaction, no Debenture
Event of Default, and no event which, after notice or lapse of time, or
both, would become a Debenture Event of Default, shall have happened and be
continuing;
49
(c) such consolidation, merger, conveyance, transfer or lease is
permitted under the Trust Agreement and Guarantee and does not give rise to
any breach or violation of the Trust Agreement or Guarantee; and
(d) 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 any such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with, and the Trustee,
subject to Section 6.1, may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger by the Company with or into any other corporation, or
any conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, 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 corporation had
been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
Such successor corporation may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Debentures
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee, and, upon the Company Order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to a Company Order such provisions and any Debentures which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debentures had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Debentures thereafter to be
issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of or notice to any Holder, 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:
50
(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 Debentures contained;
(b) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Company;
(c) to add to covenants of the Company for the benefit of the Holders
of the Debentures or to surrender any right or power herein conferred upon
the Company;
(d) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Article 13;
(e) to add any additional Debenture Events of Default;
(f) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, PROVIDED that such action pursuant to this clause
shall not materially adversely affect the interest of the Holders of
Debentures and for so long as any of the Preferred Securities shall remain
outstanding, the holders of such Preferred Securities;
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the Trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b);
(h) 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
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if any,
to be placed on Debentures, and all other matters required pursuant to
Section 3.5 or otherwise necessary, desirable or appropriate in connection
with the issuance of Debentures to holders of Preferred Securities in the
event of a distribution of Debentures by the Trust if a Special Event
occurs and is continuing.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Debentures, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Debentures under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
51
(a) except to the extent permitted by Section 3.11 with respect to the
extension of the interest payment period of the Debentures, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, the Debentures, or reduce the
principal amount thereof or the rate of interest thereon or reduce any
premium payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Debenture or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity thereof (or, in the case of
redemption, on or after the date fixed for redemption thereof);
(b) adversely affect any right to convert or exchange any Debenture or
modify the provisions of this Indenture with respect to the subordination
of the Debentures in a manner adverse to such Holder;
(c) reduce the percentage in principal amount of the Outstanding
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;
(d) modify any of the provisions of this Section, Section 4.1, Section
5.8, Section 5.13 or Section 10.6, 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 Debenture
affected thereby, or the consent of the holders of all the Preferred
Securities as the case may be; or
(e) modify the provisions in Article 12 of this Indenture with respect
to the subordination of Outstanding Debentures in a manner adverse to the
Holders thereof;
PROVIDED that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this Indenture
shall occur, and no waiver of any Debenture Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate liquidation amount of
such Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Indenture would require the consent of each Holder of
Debentures, no such consent will be given by the Property Trustee without the
prior consent of each holder of the Preferred Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing or
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the
52
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 6.1) shall be fully protected in
conclusively relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and that all conditions precedent have been
complied with. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes, and every Holder of the Debentures
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
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 Debentures
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of the Debentures that it will duly
and punctually pay the principal of (and premium, if any) and interest on the
Debentures in accordance with the terms of the Debentures and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the United States, an office or agency where Debentures may be
presented or surrendered for payment and an office or agency where Debentures
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be served.
The Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office
53
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 where the Debentures may be presented or surrendered for any or all
of 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 and any change in the location of any such office or
agency.
SECTION 10.3 MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to the
Debentures, it will, on or before each due date of the principal of (or premium,
if any) or interest on any of the Debentures, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (or premium, if any) 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 failure so to act. Whenever the Company
shall have one or more Paying Agents, it will, on or before each due date of the
principal of or interest on the Debentures, deposit with a Paying Agent a sum
sufficient to pay the principal (or premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal and premium (if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its 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:
(a) hold all sums held by it for the payment of the principal of (or
premium, if any) or interest on Debentures in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Debentures) in the making of any payment of
principal (or premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company
54
or such Paying Agent, and, upon such payment by the Company or 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 premium, if any)
or interest on any Debenture and remaining unclaimed for two years after such
principal (or premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request, after all
payments owing the Trustee have been paid, to the Company, or (if then held by
the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such 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 10.4 PAYMENT OF TAXES AND OTHER CLAIMS. The Company will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.5 STATEMENT AS TO COMPLIANCE. The Company shall deliver
to the Trustee, within 120 days after the end of each calendar year of the
Company an Officers' Certificate (signed by at least one of the officers
referred to in Section 314(a)(4) of the Trust Indenture Act) covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.5, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.6 WAIVER OF CERTAIN COVENANTS. The Company may omit in
any particular instance to comply with any covenant or condition set forth in
this Article 10, if before or after the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Debentures, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 10.7 ADDITIONAL SUMS. In the event that (a) the Property
Trustee is the Holder of all of the Outstanding Debentures, (b) a Tax Event in
respect of the Trust shall have
55
occurred and be continuing and (c) the Company shall not have (i) redeemed the
Debentures pursuant to Section 11.7 or 11.8 or (ii) dissolved the Trust pursuant
to Section 9.2(b) of the Trust Agreement, the Company shall pay to the Trust
(and its permitted successors or assigns under the Trust Agreement) for so long
as the Trust (or its permitted successor or assignee) is the registered Holder
of the Debentures, such additional amounts as may be necessary in order that the
amount of distributions (including any Additional Amounts (as defined in the
Trust Agreement)) then due and payable by the Trust on the Preferred Securities
and Common Securities that at any time remain outstanding in accord with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"ADDITIONAL SUMS"). Whenever in this Indenture or the Debentures there is a
reference in any context to the payment of principal of (or premium, if any) or
interest on the Debentures, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, PROVIDED, however, that the extension of an
interest payment period pursuant to Section 3.11 or the Debentures shall not
extend the payment of any Additional Sums that may be due and payable during
such interest payment period.
SECTION 10.8 ADDITIONAL COVENANTS. The Company covenants and agrees
with each Holder of Debentures that so long as the Debentures are outstanding,
if (i) there shall have occurred any event of which the Company has actual
knowledge that (A) with the giving of notice or the lapse of time or both, would
constitute a Debenture Event of Default hereunder and (B) in respect of which
the Company shall not have taken reasonable steps to cure, (ii) the Company
shall be in default with respect to its payment of any obligations under the
Guarantee or (iii) the Company shall have given notice of its selection of an
Extension Period as provided herein and shall not have rescinded such notice, or
such period, or any extension thereof, shall be continuing, then the Company
shall not, and shall cause any Subsidiary not to, (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock
or (y) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees of indebtedness
for money borrowed) of the Company that rank PARI PASSU with or junior to the
Debentures (other than (1) any dividend, redemption, liquidation, interest,
principal or guarantee payment by the Company where the payment is made by way
of securities (including capital stock) that rank PARI PASSU with or junior to
the securities on which such dividend, redemption, interest, principal or
guarantee payment is being made, (2) redemptions or purchases of any rights
pursuant to a stockholder rights agreement and the declaration of a dividend of
such rights or the issuance of preferred stock under such plans in the future,
(3) payments under the Guarantee, (4) purchases of Common Stock related to the
issuance of Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (5) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's capital
stock and (6) 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).
56
The Company also covenants with each Holder of the Debentures (i) that for
so long as Preferred Securities are outstanding not to convert the Debentures
except pursuant to a notice of conversion delivered to the Conversion Agent by a
holder of Preferred Securities and (ii) to maintain directly or indirectly 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, (iii) not to voluntarily terminate,
wind-up, liquidate or dissolve the Trust, except (a) in connection with a
distribution of the Debentures to the holders of Preferred Securities in
dissolution of the Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement and (iv) to use
its reasonable efforts, consistent with the terms and provisions of the Trust
Agreement to cause the Trust to remain a business trust and not to be classified
as an association taxable as a corporation for United States Federal income tax
purposes.
SECTION 10.9 PAYMENT OF EXPENSES OF THE TRUST. In connection with
the offering, sale and issuance of the Debentures to the Property Trustee and in
connection with the sale of the Preferred Securities by the Trust, the Company
shall:
(a) pay for all costs, fees and expenses relating to the offering,
sale and issuance of the Securities (as defined in the Purchase Agreement),
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 6.7 of the Indenture;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Preferred 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 Preferred 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
(c) 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.
57
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Company to redeem any Debentures shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of Debentures to be
redeemed.
SECTION 11.2 SELECTION OF DEBENTURES TO BE REDEEMED. If less than
all the Debentures are to be redeemed, the particular Debentures to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee from the Outstanding Debentures not previously called for redemption, by
lot or by such other method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal
amount of the Debentures Outstanding, PROVIDED that the unredeemed portion of
the principal amount of the Debentures be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the Debentures
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Debentures shall relate, in the case of
any Debenture redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debenture which has been or is to be redeemed. If the
Company shall so direct, Debentures registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Debentures
selected for redemption.
SECTION 11.3 NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not later than the thirtieth
(30th) day, and not earlier than the sixtieth (60th) day, prior to the date
fixed for redemption, to each Holder of Debentures to be redeemed, at the
address of such Holder as it appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of redemption shall
state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be redeemed
(the "REDEMPTION PRICE");
(c) if less than all Outstanding Debentures are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Debentures to be redeemed (including,
if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debenture or portion thereof, and that upon
deposit with the Paying Agent interest thereon, if any, shall cease to
accrue on and after the Redemption Date;
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(e) the place or places where the Debentures are to be surrendered for
payment of the redemption price at which the Debentures are to be redeemed;
(f) that a Holder of Debentures who desires to convert Debentures
called for redemption must satisfy the requirements for conversion
contained in the Debentures, the then existing Conversion Price, and the
date and time when the option to convert shall expire; and
(g) the record date for the determination of holders entitled to
receive payment of the Redemption Price, as provided in Section 11.5.
Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.4 DEPOSIT OF REDEMPTION PRICE. Prior to 12:00 noon,
Chicago time, on the Redemption Date specified in the notice of redemption given
as provided in Section 11.3, the Company will deposit with the Trustee or with
one or more Paying Agents (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 4.2) an amount of money
sufficient to redeem on the Redemption Date all the Debentures so called for
redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.5 DEBENTURES PAYABLE ON REDEMPTION DATE. If notice of
redemption has been given as provided in Section 11.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, including any accrued interest (and any Additional
Interest) thereon, and from and after such date (unless the Company shall
default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, PROVIDED, HOWEVER, that installments of interest on Debentures
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Debentures, or one of more Predecessor Debentures,
registered as such at the close of business on the relevant Regular Record Dates
or Special Record Dates, as the case may be, according to their terms and the
provisions of Section 3.7. In the event that any date on which any Redemption
Price is payable is
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not a Business Day, then payment of the Redemption Price 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, with the same force and effect as if
made on such date. Payment of the Redemption Price shall be made to the Holders
of such Debentures as they appear on the Securities Register for the Debentures
on the relevant record date, which shall be the date which is the fifteenth
(15th) day (whether or not a Business Day) preceding such Redemption Date.
If any Debenture called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Debenture.
SECTION 11.6 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 Debenture during a period beginning at 9:00 a.m.
(Chicago time) 15 Business Days before any selection for redemption of
Debentures and ending at 5:00 p.m. (Chicago time) on the earliest date in which
the relevant notice of redemption is deemed to have been given to all Holders of
Debentures to be so redeemed and (ii) register the transfer of or exchange any
Debentures so selected for redemption, in whole or in part, except for the
unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be surrendered at
the place of payment therefor (with, if the Company or the Trustee so requires,
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
Debenture without service charge, a new Debenture or 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 Debenture so surrendered. Each Debenture shall be subject to partial
redemption only in the amount of $25 or integral multiples thereof.
The Debentures are not entitled to the benefit of any Sinking or like fund.
SECTION 11.7 MANDATORY REDEMPTION. Upon (i) repayment at maturity
or (ii) as a result of acceleration upon the occurrence and continuation of a
Debenture Event of Default, the Company shall redeem the Outstanding Debentures,
in whole but not in part, at a redemption price equal to 100% of the principal
amount of such Debentures plus any accrued and unpaid interest, including any
Additional Interest, to the date fixed for redemption.
SECTION 11.8 OPTIONAL REDEMPTION. Except as set forth below, on and
after __________ __, 2001 and subject to the next succeeding sentence, the
Company shall have the right, at any time and from time to time, to redeem the
Debentures, in whole or in part, upon notice given as set forth in Section 11.3
during the twelve month periods beginning on _________ __ in each of the
following years at the indicated Redemption Price (expressed as a percentage of
the principal
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amount of the Debentures being redeemed), together with any accrued but unpaid
interest on the portion being redeemed:
Year Redemption Price Year Redemption Price
---- (%) of principal amount) ---- (%) of principal amount)
------------------------ ------------------------
The Company may not redeem the Debentures in part unless all accrued and
unpaid interest has been paid in full on all outstanding Debentures for all
quarterly interest periods terminating on or prior to the giving of notice of
the Redemption Date.
If a Tax Event shall occur and be continuing, the Company shall have the
right, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole or in part, for cash upon the later of (i) 90 days following
the occurrence of such Tax Event or (ii) __________ __, ____, at a Redemption
Price equal to the principal amount of such Debentures plus any accrued and
unpaid interest, including Additional Interest, to the date fixed for such
redemption.
SECTION 11.9 EXCHANGE OF TRUST SECURITIES FOR DEBENTURES.
(a) At any time, the Company shall have the right to dissolve the
Trust and cause the 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.
(b) If a Special Event in respect of the Trust shall occur and be
continuing, the Company shall give the Property Trustee notice of the same.
If a Special Event in respect of the Trust shall occur and be continuing,
the Trust Agreement requires the Property Trustee to direct the Conversion
Agent (as defined in the Trust Agreement) to exchange all outstanding Trust
Securities for the Debentures having a principal amount equal to the
aggregate liquidation amount of the Trust Securities to be exchanged with
accrued interest in an amount equal to any unpaid distributions (including
any Additional Amounts) on the Trust Securities PROVIDED that, in the case
of a Tax Event that shall have occurred and be continuing, the Company
shall have the right to direct the Property Trustee that less than all, or
none, of the Trust Securities be so exchanged (i) if and for so long as the
Company shall have elected to pay any Additional Sums such that the amounts
received by holders of the Trust Securities that remain outstanding are not
reduced as a result of such Tax Event, and shall not have revoked any such
election or failed to make such payments or (ii) if the
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Company shall instead elect to redeem the Debentures, in whole or in part,
in the manner set forth in Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 DEBENTURES SUBORDINATE TO SENIOR DEBT. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on each and all of the
Debentures are hereby expressly made junior and subordinate and subject in right
of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt. Notwithstanding the foregoing, any and
all amounts payable to the Trustee pursuant to Section 6.7 are not subject to
the provisions of Article 12.
SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon
any payment or distribution of assets of the Company to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as a "PROCEEDING"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt), if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures, are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or Debentures
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, but not including any
payments that are made from funds on deposit pursuant to Section 4.1(a)(ii)(B)
or funds on deposit for the redemption of Debentures for which notice of
Redemption has been given and the applicable Redemption Date has passed, such
payment or distribution being hereinafter referred to as a "JUNIOR SUBORDINATED
PAYMENT"), in respect of principal of (or premium, if any) or interest
(including any Additional Interest, if any) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any Subsidiary
and to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof any payment or distribution of any kind of
character, whether in cash, property or Debentures, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
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Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in 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 which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article 8 shall not be deemed
a Proceeding for the purposes of this Section, if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article 8.
SECTION 12.3 PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF
DEBENTURES. In the event that the Debentures are declared due and payable
before their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time the Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Debentures
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any
Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 12.10, to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
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SECTION 12.4 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Debt, or in the event that any event of default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or (b)
in the event any judicial proceeding shall be pending with respect to any
such default in payment or such event or default, then no payment or
distribution of any kind or character, whether in cash, properties or
Debentures (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest
(including any Additional Interest), if any, on the Debentures or on
account of the purchase or other acquisition of Debentures by the Company
or any Subsidiary other than payments made from funds on deposit pursuant
to Section 4.1(a)(ii)(B) or from funds on deposit for the redemption of
Debentures for which notice of redemption has been given and the Redemption
Date has passed.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 12.10, to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Debentures shall
prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 12.2 or under the conditions described in
Sections 12.3 and 12.4, from making payments at any time of principal of (or
premium, if any) or interest on the Debentures, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account
of the principal of (or premium, if any) or interest (including any Additional
Interest) on the Debentures or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, a Responsible Officer of the
Trustee did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 12.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Debt, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Debentures shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior Debt
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
Senior Debt of the Company to substantially the same extent as the Debentures
are subordinated to the Senior Debt and is entitled
64
to like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of (and premium, if any) and interest on
the Debentures shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Debentures or the Trustee
would be entitled except for the provisions of this Article, and no payments
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Debentures or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt, and the Holders of the Debentures,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
SECTION 12.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures as and when the same shall
become due and payable in accordance with their terms, or (b) affect the
relative rights against the Company of the Holders of the Debentures and
creditors of the Company other than their rights in relation to the holders of
Senior Debt, or (c) prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Debenture by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Debt 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 that any such holder may have or be otherwise charged with.
SECTION 12.10 NOTICE TO TRUSTEE. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures. Notwithstanding the provisions of this Article 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 to or
by the Trustee in respect of the Debentures, unless and until the Trustee shall
have received written notice thereof from the
65
Company or a person representing itself as a holder of Senior Debt or from any
trustee, agent or representative therefor (whether or not the facts contained in
such notice are true).
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
6, and the Holders of the Debentures shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which a
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Debentures, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT. With
respect to the holders of the Senior Debt of the Company, the Trustee undertakes
to perform or observe only such of its obligations and covenants as are set
forth in this Article 12, and no implied covenants or obligations with respect
to the holders of such Senior Debt shall be read into this Indenture against
First Chicago and/or the Trustee. First Chicago and/or the Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Debt and, subject
to the provisions of Section 6.3, neither the Trustee (nor First Chicago) shall
be liable to the holder of any Senior Debt if it shall pay over or deliver to
Holders, the Company, or any other person, money or assets to which any holder
of such Senior Debt shall be entitled to by virtue of this Article 12 or
otherwise.
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and, subject to the requirements of the Trust Indenture
Act, nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
SECTION 12.14 ARTICLE APPLICABLE TO PAYING AGENTS. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "TRUSTEE" as used in this Article
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intent and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 12.15 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT. For
the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or premium,
if any) or interest (including any Additional Interest) on the Debentures or on
account of the purchase or other acquisition of Debentures, and (b) the payment,
issuance or delivery of cash (including any payments for fractional shares),
property or securities (other than junior securities) upon conversion or
exchange of a Debenture shall be deemed to constitute payment on account of the
principal of such security. For the purpose of this Section, the term "JUNIOR
SECURITIES"
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means (i) shares of any stock of any class of the Company and (ii) securities of
the Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Debentures
are so subordinated as provided in this Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 CONVERSION RIGHTS. Subject to and upon compliance with
the provisions of this Article, the Debentures are convertible, at the option of
the Holder, at any time prior to the redemption or maturity, into fully paid and
nonassessable shares of Class A Common Stock at an initial conversion rate of
______ shares of Class A Common Stock for each $25 in aggregate principal amount
of Debentures (equal to a conversion price of approximately $_____ per share of
Class A Common Stock), subject to adjustment as described in this Article 13 (as
adjusted, the "CONVERSION PRICE"). A Holder of Debentures may convert any
portion of the principal amount of the Debentures into that number of fully paid
and nonassessable shares of Class A Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by dividing the principal
amount of the Debentures to be converted by the Conversion Price. In case a
Debenture or portion thereof is called for redemption, such conversion right in
respect of the Debenture or portion so called shall expire at the close of
business on the Redemption Date, unless the Company defaults in making the
payment due upon redemption.
SECTION 13.2 CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Debentures, the Holder
thereof shall deliver to the Property Trustee, as conversion agent or to
such other agent appointed for such purposes (the "CONVERSION AGENT") an
irrevocable Notice of Conversion setting forth the principal amount of
Debentures to be converted, together with the name or names, if other than
the Holder, in which the shares of Class A Common Stock should be issued
upon conversion and, if such Debentures are definitive Debentures,
surrender to the Conversion Agent the 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 Class A 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 Debentures held by the Trust (at an exchange rate of $25 principal
amount of Debentures for each Preferred Security) and (ii) to immediately
convert such Debentures, on behalf of such holder, into Class A Common
Stock pursuant to this Article 13 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, the Trust shall not convert any Debentures except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a holder of
Preferred Securities.
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If a Notice of Conversion is delivered on or after the Regular Record
Date and prior to the subsequent Interest Payment Date, the Holder of
record on the Regular Record Date will be entitled to receive the interest
paid on the subsequent Interest Payment Date on the portion of 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 Debenture which is converted,
interest whose Stated Maturity is on or after the date of conversion of
such 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 on the Debentures being converted, which shall
be deemed to be paid in full. Debentures submitted for conversion prior to
the expiration of conversion rights as provided in Section 13.3 shall be
deemed to have been effected immediately prior to the close of business 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 Class A Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such Class A Common Stock as of the Conversion Date and such
Person or Persons will cease to be a record Holder or record Holders of the
Debentures on that 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 or holder in the
Notice of Conversion, a certificate or certificates for the number of full
shares of Class A 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) The Company's delivery upon conversion of the fixed number of
shares of Class A Common Stock into which the 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 Debentures so converted and any unpaid
interest (including Additional Interest) accrued on such Debentures at the
time of such conversion.
(c) No fractional shares of Class A 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 Current Market Price with respect to such fractional interest on the
date on which the Debentures or Preferred Securities, as the case may be,
were duly surrendered to the Conversion Agent for conversion, and the
Conversion Agent in turn will make such payment, if any, to the Holder of
the Securities or the holder of the Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part only, a
new Debenture or Debentures for the unconverted portion thereof will be
issued in the name of the Holder thereof upon the cancellation of the
Debenture converted in part in accordance with Section 3.5.
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(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
Debentures) and as agent of the Holders of Debentures (in the conversion of
Debentures into Class A Common Stock), as the case may be, directing it to
effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange 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 13 and (ii) to convert
all or a portion of the Debentures into Class A Common Stock and thereupon
to deliver such shares of Class A Common Stock in accordance with the
provisions of this Article 13 and to deliver to the Trust a new Debenture
or Debentures for any resulting unconverted principal amount.
(f) Except as provided in Section 2.6, all shares of Class A Common
Stock delivered upon any conversion of Debentures shall bear a legend
substantially in the form of the legend set forth in Exhibit C to the Trust
Agreement. Neither the Trustee nor the Conversion Agent shall have any
responsibility for the inclusion or content of any such legend on such
Class A Common Stock.
(g) The Company shall at all times reserve and keep available out of
its authorized and unissued Class A Common Stock, solely for issuance upon
the conversion of the Debentures, such number of shares of Class A Common
Stock as shall from time to time be issuable upon the conversion of all the
Debentures then outstanding. Notwithstanding the foregoing, the Company
shall be entitled to deliver upon conversion of Debentures shares of Class
A Common Stock reacquired and held in the treasury of the Company (in lieu
of the issuance of authorized and unissued shares of Class A Common Stock)
so long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Whenever the Company issues
shares of Class A Common Stock upon conversion of Debentures, and the
Company has in effect at such time a stock purchase rights agreement under
which holders of Common Stock are issued rights ("RIGHTS") entitling the
holders under certain circumstances to purchase an additional share or
shares of stock, the Company will issue, together with each such share of
Class A Common Stock, such number of Rights (which number may be a
fraction) as shall at that time be issuable with a share of Common Stock
pursuant to such stock purchase rights agreement. Any shares of Class A
Common Stock issued upon conversion of the Debentures shall be duly
authorized, validly issued and fully paid and nonassessable. The
Conversion Agent shall deliver the shares of Class A Common Stock received
upon conversion of the Debentures to the converting Holder free and clear
of all liens, charges, security interests and encumbrances, except for
United States withholding taxes. The Company shall use its best efforts to
obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all
applicable requirements as to registration or qualification of Common Stock
(and all requirements to list Class A Common Stock issuable upon conversion
of Debentures that are at the time applicable), in order to enable the
Company to lawfully issue Class A Common Stock upon conversion of the
Debentures and to lawfully deliver Class A Common Stock to each Holder upon
conversion of the Debentures.
69
(h) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Class A Common Stock on
conversion of Debentures. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of shares of Class A Common Stock in a name other than
that in which the Debentures so converted were registered, and no such
issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Conversion Agent the amount of any such tax, or has
established to the satisfaction of the Conversion Agent that such tax has
been paid.
(i) Nothing in this Article 13 shall limit the requirement of the
Company to withhold taxes pursuant to the terms of the Debentures or as set
forth in this Agreement or otherwise require the Trustee or the Company to
pay any amounts on account of such withholdings.
SECTION 13.3 EXPIRATION OF CONVERSION RIGHTS. The conversion rights
of Holders of Debentures shall expire at the close of business on the date set
for redemption of the Debentures upon the redemption or Stated Maturity of the
Debentures.
SECTION 13.4 CONVERSION PRICE ADJUSTMENTS. The conversion price
shall be subject to adjustment (without duplication) from time to time as
follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock exclusively in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock
of the Company, the conversion privilege and the Conversion Price in effect
immediately prior to such action shall be adjusted so that the Holder of
any 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 Debentures been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (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 subsection (a), the Holder of any
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. In the event that such
dividend, distribution, subdivision, combination or issuance 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.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring
70
within 45 days after the record date for the determination of stockholders
entitled to receive such rights or warrants) to subscribe for or purchase
shares of Common Stock at a price per share less than the Current Market
Price per share of Common Stock on such record date, the Conversion Price
for the 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 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 Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of 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 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 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 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 subparagraph, in case the
Company shall, by dividend or otherwise, distribute to all holders of its
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 subparagraph (b), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in subparagraph (a) of this Section 13.4), 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
subparagraph (c) by a fraction of which the numerator shall be the Current
Market Price per share of Class A 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 Class A Common Stock and the denominator shall
be such Current Market Price per share of Class A 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. For purposes of this
subparagraph (c), any dividend or distribution that includes shares of
Class A Common Stock or rights or warrants to subscribe for or purchase
shares of Class A Common Stock shall be deemed instead to be (i) a dividend
or distribution of the
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evidences of indebtedness, shares of capital stock, cash or assets other
than such shares of Class A Common Stock or such rights or warrants (making
any Conversion Price reduction required by this subparagraph (c))
immediately followed by (ii) a dividend or distribution of such shares of
Class A Common Stock or such rights or warrants (making any further
conversion price reduction required by subparagraph (a) or (b)), except (A)
the Reference Date of such dividend or distribution as defined in this
subparagraph shall be substituted as (x) "the record date in the case of a
dividend or other distribution," and (y) "the record date for the
determination of stockholders entitled to receive such rights or warrants"
and (z) "the date fixed for such determination" within the meaning of
subparagraphs (a) and (b) and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed outstanding for purposes
of computing any adjustment of the conversion price in subparagraph (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding (i) all
cash dividends, if the amount thereof does not exceed the per share amount
of the immediately preceding regular cash dividend (as adjusted to reflect
any of the events referred to in subparagraphs (a), (b), (c), (d) or (e) of
this Section and (ii) all cash dividends, if the annualized amount thereof
per share of Common Stock does not exceed 12.5% of the Current Market Price
per share of 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 subparagraph (d) by a
fraction of which the numerator shall be the Current Market Price per share
of Common Stock on the date fixed for the payment of such distribution less
the amount of cash so distributed (excluding that portion of such
distribution that does not exceed 12.5% of the Current Market Price per
share, determined as provided above) applicable to one share of Common
Stock and the denominator shall be such Current Market Price per share of
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 Common Stock is equal to or
greater than the Current Market Price per share of Common Stock on the
record date mentioned above (excluding that portion of such distribution
that does not exceed 12.5% of the Current Market Price per share,
determined as provided above), in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of shares of
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 Debentures immediately prior to the record date for the distribution
of the cash (less that portion of such distribution that does not exceed
12.5% of the Current Market Price per share, determined as provided above).
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 Common Stock shall
72
expire and such tender or exchange offer shall involve the payment by the
Company or such Subsidiary of consideration per share of 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 of 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 subparagraph (e) by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time
(including the Purchased Shares) (as defined below) multiplied by the
Current Market Price per share of Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender 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") (excluding that portion of such consideration
that does not exceed 110% of the Current Market Price per share) and (y)
the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Current Market Price per
share of Common Stock on the trading day next succeeding the Expiration
Time, such reduction to become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that
such tender or exchange offer is not so 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.
(f) If the distribution date for the Rights of the Company provided in
the Stockholder Rights Agreement occurs prior to the Conversion Date, and a
Holder of the Debentures who converts such Debentures after such
distribution date is not entitled to receive the Rights that would
otherwise be attached (but for the date of conversion) to the shares of
Class A Common Stock received upon such conversion, then an adjustment
shall be made to the Conversion Price pursuant to clause (ii) of Section
13.4(a) as if the Rights were being distributed to Common Stockholders of
the Company immediately prior to such conversion. If such an adjustment is
made and the Rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the Conversion Price,
on an equitable basis, to take account of such event.
(g) The Company shall have the right to reduce from time to time the
Conversion Price by any amount selected by the Company for any period of at
least 30 days, PROVIDED, that Company shall give at least 15 days' written
notice of such reduction to the Trustee and the Property Trustee. The
Company may, at its option, make such reductions in the Conversion Price,
in addition to those set forth above in Section 13.4(a), as the Board of
Directors deems advisable to avoid or diminish any income tax to holders of
Common Stock
73
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for United States Federal income
tax purposes.
(h) Notwithstanding anything to the contrary in this Section 13.4, no
adjustment of the Conversion Price will be made upon the issuance of any
shares of Common Stock (or securities convertible or exchangeable for
Common Stock), except as specifically provided above, including pursuant to
any present or future 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 Common Stock under any such plan,
or the issuance of any shares of Common Stock or options or rights to
purchase such shares pursuant to any present or future employee benefit
plan or program of the Company or pursuant to any option, warrant, right,
or exercisable, exchangeable or convertible security which does not
constitute an issuance to all holders of Common Stock of rights or warrants
entitling holders of such rights or warrants to subscribe for or purchase
Common Stock at less than the Current Market Price. Further, such
issuances shall not be deemed to constitute an issuance of 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 13. No adjustment
in the Conversion Price will be required unless such adjustment would
require an increase or decrease of at least 1% of the Conversion Price, but
any adjustment that would otherwise be required to be made shall be carried
forward and taken into account in a subsequent adjustment.
(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
Debentures.
SECTION 13.5 FUNDAMENTAL CHANGE.
(a) In the event that the Company is a 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
Common Stock), consolidation, sale of all or substantially all of the
assets of the Company, recapitalization or reclassification of 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 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 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 and the time of such conversion), securities, cash or other property,
each Debenture 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
74
number of shares of Class A Common Stock into which a Debenture was
convertible immediately prior to such Transaction, or (ii) in the case of
a Transaction involving a Common Stock Fundamental Change, common stock,
each Debenture shall thereafter be convertible (in the manner described
herein) into common stock of the kind received by holders of Common Stock
(but in each case after giving effect to any adjustment discussed in
paragraphs (b) and (c) relating to a Fundamental Change if such Transaction
constitutes a Fundamental Change). The holders of Debentures or 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 in paragraph (c) below. In addition, in the event of a Common
Stock Fundamental Change, each Debenture shall be convertible solely into
common stock of the kind received by holders of Common Stock as a result of
such Common Stock Fundamental Change.
(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 Debentures 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
result obtained by multiplying the greater of the Applicable Price or
the then applicable Reference Market Price by a fraction of which the
numerator will be $25 and the denominator will be (x) the amount of
the Redemption Price for one Debenture if the Redemption Date were the
date of such Non-Stock Fundamental Change (or, for the period
commencing on the first date of original issuance of the Debentures
and through _________ __, ____, and the twelve-month periods
commencing __________ __, ____, __________ __, ____ and __________ __,
____, the product of ______%, ______%, ______% and ______%,
respectively, multiplied by $25) plus (y) any then-accrued and unpaid
interest on one Debenture; and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Debentures 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 common stock is
common stock of the successor, acquiror, 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 of common stock will have been exchanged for, converted
into, or acquired for common stock (and cash with respect to
fractional
75
interests) of the successor, acquiror, or other third party, the
Conversion Price of the Debentures 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, acquiror, or other third party received by a
holder of one share of common stock as a result of such Common Stock
Fundamental Change.
SECTION 13.6 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 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
Debentures at their last addresses as they appear upon the stock transfer
books of the Company and the Trust and the Securities Registrar.
SECTION 13.7 PRIOR NOTICE OF CERTAIN EVENTS. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 13.4(c) or (d) or (ii) authorize
a tender or exchange offer that would require an adjustment pursuant to
Section 13.4(e);
(b) the Company shall authorize the granting to all holders of 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;
(c) of any reclassification of Common Stock (other than a subdivision
or combination of the outstanding 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 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 Common Stock is converted into
other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
76
then the Company shall (A) if any Preferred Securities are outstanding under the
Trust Agreement, 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 of the Trust or (B) 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 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 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 Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, 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 13.8 CERTAIN ADDITIONAL RIGHTS. In case the Company shall,
by dividend or otherwise, declare or make a distribution on its Common Stock
referred to in Section 13.4(c) or 13.4(d) (including, without limitation,
dividends or distributions referred to in the last sentence of Section 13.4(c)),
the Holders of the Debentures, upon the conversion thereof subsequent to the
close of business 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 Class A Common Stock into which the
Debentures are converted, the portion of the shares of Class A Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash and
assets so distributed applicable to one share of Class A 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 Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Common Stock which
the Holder of 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 Class A 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 Class A Common Stock is then traded and (ii) requires payment or delivery
of such shares of Class A 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 Class A Common Stock
receiving such distribution.
77
SECTION 13.9 RESTRICTIONS ON CLASS A COMMON STOCK ISSUABLE UPON
CONVERSION.
(a) Shares of Class A Common Stock to be issued upon conversion of a
Debenture in respect of Preferred Securities shall bear such restrictive
legends as the Company may provide in accordance with applicable law.
(b) If shares of Class A Common Stock to be issued upon conversion of
a Debenture in respect of 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 Class A 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 nor any Conversion Agent or Registrar shall be required to
register in a name other than that of the Holder shares of Class A Common
Stock issued upon conversion of any such Debenture in respect of such
Preferred Securities not so accompanied by a properly completed
certificate.
SECTION 13.10 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 Debenture or to any holder of a
Preferred Security 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 Class A
Common Stock or of any securities or property, which may at any time be issued
or delivered upon the conversion of any 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
Class A Common Stock or stock certificates or other securities or property upon
the surrender of any 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 10 or this Article 13.
* * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DURA AUTOMOTIVE SYSTEMS, INC.
By:
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Name:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
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Name:
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Title:
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