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EXHIBIT 4.3
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TITANIUM METALS CORPORATION, as Issuer
and
THE CHASE MANHATTAN BANK, as Trustee
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INDENTURE
Dated as of November 20, 1996
$180,412,400*
6-5/8% Convertible Junior Subordinated Debentures due 2026
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* Subject to increase to up to $207,474,300 in the event the
over-allotment option is exercised.
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TABLE OF CONTENTS
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Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . 13
SECTION 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . 13
SECTION 1.04. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . 14
SECTION 1.05. Notices, Etc., to Trustee and the Company . . . . . . . . . . 16
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 16
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . . . 17
SECTION 1.08. Effect of Headings and Table of Contents . . . . . . . . . . 17
SECTION 1.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . 17
SECTION 1.10. Invalidity of any Provision . . . . . . . . . . . . . . . . . 17
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.13. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.02. Initial Issuance To Property
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III
The Debentures
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.03. Execution, Authentication, Delivery and Dating . . . . . . . 21
SECTION 3.04. Temporary Debentures . . . . . . . . . . . . . . . . . . . . 22
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SECTION 3.05. Registration, Registration of Transfer and Exchange . . . . . 22
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . 24
SECTION 3.07. Payment of Interest; Interest Rights Preserved . . . . . . . 25
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.09. Cancelation . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.10. Right of Set Off . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.11. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.12. Option to Extend Interest Payment Period . . . . . . . . . . 28
SECTION 3.13. Paying Agent, Security Registrar and Conversion Agent . . . . 30
SECTION 3.14. Global Debentures . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . 33
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . 34
ARTICLE V
Remedies
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . 36
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . 38
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Debentures . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.06. Application of Money Collected . . . . . . . . . . . . . . . 39
SECTION 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest and Convert . . . . . . . . . . . . . . . . . . 40
SECTION 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . 40
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . 40
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 40
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SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 41
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . 42
SECTION 5.16. Enforcement by Holders of Convertible Preferred
Securities . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . . 43
SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 43
SECTION 6.04. Not Responsible for Recitals or Issuance of Debentures . . . 45
SECTION 6.05. May Hold Debentures . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . 45
SECTION 6.08. Disqualification; Conflicting Interests . . . . . . . . . . . 46
SECTION 6.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . 46
SECTION 6.10. Resignation and Removal; Appointment of Successor . . . . . . 47
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . 48
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.13. Preferential Collection of Claims Against Company . . . . . . 49
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders . . 49
SECTION 7.02. Preservation of Information; Communications to Holders . . . 50
SECTION 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . 51
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms . . . . 51
SECTION 8.02. Successor Substituted . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . . 53
SECTION 9.02. Supplemental Indentures with Consent of Holders . . . . . . . 54
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . 55
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . 55
SECTION 9.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . 56
SECTION 9.06. Reference in Debentures to Supplemental Indentures . . . . . 56
ARTICLE X
Covenants; Representations and Warranties
SECTION 10.01. Payment of Principal and Interest . . . . . . . . . . . . . . 56
SECTION 10.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . 56
SECTION 10.03. Money for Debenture Payments to Be Held in Trust . . . . . . 57
SECTION 10.04. Statement by Officers as to Default . . . . . . . . . . . . . 58
SECTION 10.05. Limitation on Dividends; Covenants as to the Trust . . . . . 58
SECTION 10.06. Payment of Expenses of the Trust . . . . . . . . . . . . . . 59
ARTICLE XI
Redemption of Debentures
SECTION 11.01. Optional Redemption . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.02. Tax Event Optional Redemption . . . . . . . . . . . . . . . . 61
SECTION 11.03. Applicability of Article . . . . . . . . . . . . . . . . . . 62
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SECTION 11.04. Election to Redeem; Notice to Trustee . . . . . . . . . . . . 62
SECTION 11.05. Selection by Trustee of Debentures to Be Redeemed . . . . . . 62
SECTION 11.06. Notice of Redemption . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.07. Deposit and Payment of Redemption Price . . . . . . . . . . . 63
SECTION 11.08. Debentures Payable on Redemption Date . . . . . . . . . . . . 64
SECTION 11.09. Debentures Redeemed in Part . . . . . . . . . . . . . . . . . 64
SECTION 11.10. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XII
Subordination of Debentures
SECTION 12.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . 65
SECTION 12.02. Default on Senior Indebtedness . . . . . . . . . . . . . . . 66
SECTION 12.03. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . 66
SECTION 12.04. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.05. Trustee to Effectuate Subordination . . . . . . . . . . . . . 69
SECTION 12.06. Notice by the Company . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.07. Rights of the Trustee; Holders of Senior Indebtedness . . . . 71
SECTION 12.08. Subordination May Not Be Impaired . . . . . . . . . . . . . . 71
ARTICLE XIII
Conversion of Debentures
SECTION 13.01. Conversion Rights . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.02. Conversion Procedures . . . . . . . . . . . . . . . . . . . . 73
SECTION 13.03. Conversion Price Adjustments . . . . . . . . . . . . . . . . 75
SECTION 13.04. Reclassification, Consolidation, Merger or Sale of Assets . . 81
SECTION 13.05. Notice of Adjustments of Conversion Price . . . . . . . . . . 82
SECTION 13.06. Prior Notice of Certain Events . . . . . . . . . . . . . . . 83
SECTION 13.07. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 84
SECTION 13.08. Dividend or Interest Reinvestment Plans . . . . . . . . . . . 84
SECTION 13.09. Certain Additional Rights . . . . . . . . . . . . . . . . . . 85
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SECTION 13.10. Trustee Not Responsible for Determining Conversion Price or
Adjustments . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 13.11 Restrictions on Transfer of Common Stock Issuable Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 14.01. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . 87
EXHIBIT AND ANNEX
EXHIBIT A Form of Debenture
ANNEX A Amended and Restated Declaration of Trust among the Company,
as trust sponsor, The Chase Manhattan Bank, as property
trustee, Chase Manhattan Bank Delaware, as Delaware trustee,
and Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxxxxx and Xxxx X.
Xxxxxxx, as regular trustees, dated as of November 20, 1996.
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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EXECUTION COPY
INDENTURE, dated as of November 20, 1996,
between TITANIUM METALS CORPORATION, a corporation
duly organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 0000 Xxxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, and THE CHASE MANHATTAN
BANK, a New York banking corporation, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS TIMET Capital Trust I, a Delaware business trust (the
"Trust"), formed under the Amended and Restated Declaration of Trust among the
Company, as trust sponsor, The Chase Manhattan Bank, as property trustee (the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware trustee (the
"Delaware Trustee"), and Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxxxxx and Xxxx
X. Xxxxxxx, as regular trustees (the "Regular Trustees"), dated as of November
20, 1996 (the "Declaration"), pursuant to the Purchase Agreement (the "Purchase
Agreement") dated November 20, 1996, among the Company and the underwriters
named therein, will issue and sell up to 3,500,000 (or 4,025,000 if the
over-allotment option is exercised in full) of its 6-5/8% Convertible Preferred
Securities, Beneficial Unsecured Convertible Securities (BUCS) (the
"Convertible Preferred Securities") with a liquidation amount of $50.00 per
Convertible Preferred Security, having an aggregate liquidation amount with
respect to the assets of the Trust of $175,000,000 (or $201,250,000 if the
over-allotment option is exercised in full);
WHEREAS the trustees of the Trust, on behalf of the Trust,
will execute and deliver to the Company 6-5/8% Common Securities (the "Trust
Common Securities") of the Trust, registered in the name of the Company, in an
aggregate amount equal to three percent of the capitalization of the Trust,
equivalent to 108,248 Trust Common Securities (or 124,486 Trust Common
Securities if the over-allotment option is exercised in full), with a
liquidation amount of $50.00 per Trust Common Security, having an aggregate
liquidation amount with respect to the assets of the Trust of $5,412,400 (or
$6,224,300 if the over-allotment option is exercised in full) (the "Trust
Common Securities");
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WHEREAS the Trust will use the proceeds from the sale of the
Convertible Preferred Securities and the Trust Common Securities to purchase
from the Company 6-5/8% Convertible Junior Subordinated Debentures due 2026
(the "Debentures") of the Company in an aggregate principal amount of
$180,412,400 (or $207,474,300 if the over-allotment option is exercised in
full);
WHEREAS the Company is guaranteeing the payment of
distributions on the Convertible Preferred Securities, and payment of the
Redemption Price (as defined herein) and payments on liquidation with respect
to the Convertible Preferred Securities, to the extent provided in the
Convertible Preferred Securities Guarantee Agreement (the "Guarantee") dated
November 20, 1996 between the Company and The Chase Manhattan Bank, as
guarantee trustee, for the benefit of the holders of the Convertible Preferred
Securities from time to time;
WHEREAS the Company has duly authorized the creation of the
Debentures of the tenor and amount herein set forth and to provide therefor the
Company has duly authorized the execution and delivery of this Indenture;
WHEREAS so long as the Trust is a Holder of Debentures, and
any Convertible Preferred Securities are outstanding, the Declaration provides
that the holders of Convertible Preferred Securities may cause the Conversion
Agent to (a) exchange such Convertible Preferred Securities for Debentures held
by the Trust and (b) immediately convert such Debentures into Common Stock of
the Company; and
WHEREAS 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 agreed, for the equal and
ratable benefit of all Holders of the Debentures, as follows:
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ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04 hereof.
"Additional Interest" has the meaning specified in Section
3.01 hereof.
"Additional Payments" means Compound Interest and Additional
Interest, if any.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereto.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day on which banking institutions in
The City of New York or in Chicago, Illinois are authorized or required by law
to close.
"Certificated Convertible Preferred Securities" has the
meaning specified in Section 3.14 hereof.
"Closing Price" has the meaning specified in Section 13.07(a)
hereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Article XIII, shares issuable on conversion of
Debentures shall include only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable on conversion shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor
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Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Compound Interest" has the meaning specified in Section 3.12
hereof.
"Conversion Agent" means the Person appointed to act on behalf
of the holders of Convertible Preferred Securities in effecting the conversion
of Debentures as and in the manner set forth in the Declaration and Section
13.02 hereof.
"Conversion Date" has the meaning specified in Section 13.02
hereof.
"Convertible Preferred Securities" has the meaning specified
in the Recitals to this instrument.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York, at which at any particular time its corporate
trust business shall be administered and which at the date of this Indenture is
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Facility" means that certain Amended and Restated Loan
and Security Agreement, dated as of March 24, 1995, as amended, by and between
the Company and Congress Financial Corporation (Central), including any related
notes, guarantees, collateral documents, security agreements, hypothecs,
mortgages, instruments and agreements executed in connection therewith, in each
case as they or any of them may be amended, modified or restated from time to
time; or any refinancing of such agreement in the bank credit market (including
institutional participants therein).
"Current Market Price" has the meaning specified in Section
13.03(f) hereof.
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"Debentures" has the meaning specified in the Recitals to this
instrument.
"Declaration" has the meaning specified in the Recitals of
this instrument.
"Defaulted Interest" has the meaning specified in Section 3.07
hereof.
"Delaware Trustee" has the meaning given it in the Recitals of
this instrument.
"Depositary" means, with respect to any Debentures issued in
the form of one or more Global Debenture, a clearing agency registered under
the Exchange Act that is dedicated to act as Depositary for the Debentures.
"Direct Action" means a proceeding directly instituted by a
holder of Convertible Preferred Securities for enforcement of payment to such
holder of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Convertible Preferred
Securities of such holder on or after the respective due date specified in the
Debentures, if an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Company to pay
principal of, premium, if any, or interest on, the Debentures on the date such
principal, premium or interest is otherwise payable (or in the case of
redemption, on the Redemption Date).
"Dissolution Event" means that, as a result of the occurrence
and continuation of a Special Event, the Trust is to be dissolved in accordance
with the Declaration and the Debentures held by the Property Trustee are to be
distributed to the holders of Trust Securities issued by the Trust pro rata in
accordance with the Declaration.
"Dissolution Tax Opinion" has the meaning specified in Annex I
to the Declaration.
"Event of Default" has the meaning specified in Section 5.01
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated
thereunder, or any successor legislation thereto.
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"Expiration Time" has the meaning specified in Section
13.03(e) hereof.
"Extension Period" has the meaning specified in Section 3.12
hereof.
"Global Debentures" has the meaning specified in Section 3.14
hereof.
"Guarantee" has the meaning specified in the Recitals to this
instrument.
"Holder" means a Person in whose name a Debenture is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" has the meaning specified in Section
3.01 hereof.
"Investment Company Event" has the meaning specified in Annex
I to the Declaration.
"Maturity", when used with respect to any Debenture, means the
date on which the principal of such Debenture becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Ministerial Action" has the meaning specified in Section
11.02 hereof.
"90-Day Period" has the meaning specified in Section 11.02
hereof.
"No Recognition Opinion" has the meaning specified in Annex I
to the Declaration.
"Notice of Conversion" means the notice to be given by a
holder of Convertible Preferred Securities to the
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Conversion Agent directing the Conversion Agent to exchange such Convertible
Preferred Securities for Debentures and to convert such Debentures into Common
Stock on behalf of such holder.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 10.04 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel who
may be the Company's General Counsel.
"Outstanding", when used with respect to Debentures, means, as
of the date of determination, all Debentures theretofore authenticated and
delivered under this Indenture, except (i) Debentures theretofore canceled by
the Trustee or delivered to the Trustee for cancelation; (ii) Debentures for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Debentures; provided that
if such Debentures are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Debentures that have been paid pursuant to
Section 3.07, converted into Common Stock pursuant to Section 13.01, or in
exchange for or in lieu of which other Debentures have been authenticated and
delivered pursuant to this Indenture, other than any such Debentures in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Debentures are held by a bona fide purchaser in whose hands such
Debentures are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of the
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 of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request,
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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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any Debentures on behalf
of the Company.
"Person" means any legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Predecessor 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 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Property Trustee" has the meaning specified in the Recitals
of this instrument.
"Purchase Agreement" has the meaning specified in the Recitals
to this instrument.
"Purchased Shares" has the meaning specified in Section
13.03(e) hereof.
"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", when used with respect to any Debenture to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Redemption Tax Opinion" has the meaning set forth in Annex I
to the Declaration.
"Reference Date" has the meaning specified in Section 13.03(c)
hereof.
"Registration Agreement" means the Registration Agreement,
dated November 20, 1996, among the Trust, the Company and the Initial
Purchasers named in the Purchase Agreement.
"Regular Record Date" has the meaning specified in Section
3.01 hereof.
"Regular Trustees" has the meaning specified in the Recitals
of this instrument.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Trustee, any
vice president, any assistant vice president, the treasurer, any assistant
treasurer, the secretary, any assistant secretary, any trust officer or any
other officer in the Corporate Trust Office of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Restrictive Legend" has the meaning specified in Section 2.02
hereof.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations promulgated thereunder, or any
successor legislation thereto.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05 hereof.
"Senior Indebtedness" means, with respect to the Company, (i)
the principal of, premium, if any, and interest in respect of, (A) indebtedness
of the Company for money
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borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by the Company, including interest accruing on
or after a bankruptcy or other similar event, whether or not an allowed claim
therein, (ii) all indebtedness, and all obligations to pay fees and other
amounts, under the Credit Facility, (iii) all capital lease obligations of the
Company, (iv) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Company and
all obligations of the Company under any title retention agreement (but
excluding obligations to trade creditors), (v) all obligations of the Company
for the reimbursement of any letter of credit, banker's acceptance, security
purchase facility or similar credit transaction, (vi) all obligations of the
type referred to in clauses (i) through (v) above of other Persons for the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise, and (vii) all obligations of the type referred to in clauses (i)
through (vi) above of other Persons secured by any lien on any property or
asset of the Company (whether or not such obligation is assumed by the
Company), except in the cases of each of clauses (i) through (vii) above for
(1) any such indebtedness that is by its terms subordinated to or pari passu
with the Debentures and (2) any indebtedness between or among the Company or
its affiliates, including all other debt securities and guarantees in respect
of those debt securities issued to (a) the Trust or a trustee of such Trust or
(b) any other trust, or a trustee of such trust, partnership, or other entity
affiliated with the Company that is a financing vehicle of the Company (a
"Financing Entity") in connection with the issuance by such Financing Entity of
preferred securities or other securities which rank pari passu with, or junior
to, the Convertible Preferred Securities. Such Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of Article XII
irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness.
"Shelf Registration Statement" has the meaning specified in
the Registration Agreement.
"Special Event" has the meaning specified in Annex I to the
Declaration.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07 hereof.
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"Stated Maturity", when used with respect to any Debenture or
any instalment of interest thereon, means the date specified in such Debenture
as the fixed date on which the principal, together with any accrued and unpaid
interest (including Compound Interest), of such Debenture or such instalment of
interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other
than a corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof, directly
or indirectly, has at least a majority ownership and power to direct the
policies, management and affairs thereof.
"Tax Event" has the meaning specified in Annex I to the
Declaration.
"Trading Day" has the meaning specified in Section 13.07(b)
hereof.
"Trust" has the meaning specified in the Recitals to this
instrument.
"Trust Common Securities" has the meaning specified in the
recitals to this Instrument.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, and the rules and regulations promulgated
thereunder, or any successor legislation thereto.
"Trust Securities" means the Convertible Preferred Securities
and the Trust Common Securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president thereof, whether or not designated by a
number or a word or words added before or after the title "vice president".
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"Voting Stock" of any Person means capital stock of such
Person which ordinarily has voting power for the election of directors (or
Persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason
of any contingency.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act or
reasonably requested by the Trustee in connection with such application or
request. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto; (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the
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individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee or the Company, as the
case may be, deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Debentures entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given or
taken by Holders. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The ownership of Debentures shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Debenture.
(f) 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.
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SECTION 1.05. Notices, Etc., to Trustee and the Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with, (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, or sent via facsimile to, the Trustee
at its Corporate Trust Office, Attention: Global Trust Services, or (b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, or sent via facsimile, 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 1.06. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder's address as it appears in the Security Register, not later than
the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Any notice when mailed to a Holder
in the aforesaid manner shall be conclusively deemed to have been received by
such Holder whether or not actually received by such Holder. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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SECTION 1.07. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. 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 1.09. 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. Invalidity of any Provision. 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 hereto and their successors hereunder, the holders of
Senior Indebtedness, the holders of Convertible Preferred Securities (to the
extent provided herein) and the Holders of 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 NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Debenture or the last
date on which a Holder has the right to convert his Debentures shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Debentures) payment of interest or principal or conversion of the
Debentures need not be made on such date, but may be made on the next
succeeding
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Business Day (except that, if such Business Day is in the next succeeding
calendar year, such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, shall be the immediately preceding Business Day) with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity or on such last day for conversion; provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14. Trust Indenture Act; Application. (a) This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture, which are incorporated by reference in
and made part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
ARTICLE II
Debenture Forms
SECTION 2.01. Forms Generally. The Debentures and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Debentures may have may have letters, numbers, notations or
other marks of identification or designation and such legends or endorsements
required by law, securities exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). The Company shall furnish
any such legend not contained in Exhibit A to the Trustee in writing. Each
Debenture shall be dated the date of its authentication. The terms and
provisions of the Debentures set forth in Exhibit A are part of the terms of
this Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
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The definitive Debentures shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any national securities exchange or quotation system on which the
Debentures may from time to time be listed, all as determined by the officers
executing such Debentures, as evidenced by their execution thereof.
SECTION 2.02. 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 coupons and shall bear the restrictive legend (the "Restrictive
Legend") contained in Exhibit A unless and until the Company determines
otherwise in accordance with applicable law.
ARTICLE III
The Debentures
SECTION 3.01. Title and Terms. The aggregate principal
amount of Debentures that may be authenticated and delivered under this
Indenture is limited to the sum of (a) $180,412,400 and (b) such aggregate
principal amount (which may not exceed $27,061,900 if the over-allotment option
is exercised) of Debentures, if any, as shall be purchased by the Trust
pursuant to an over-allotment option in accordance with the terms and
provisions of the Purchase Agreement, except for Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Debentures pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.09 or 13.02.
The Debentures shall be known and designated as the "6-5/8%
Convertible Junior Subordinated Debentures due 2026" of the Company. Their
Stated Maturity shall be December 1, 2026, and they shall bear interest at the
rate of 6.625% per annum (subject to adjustment in the event the Shelf
Registration Statement is not filed or is not declared effective within, or is
not continuously effective for, the time periods specified in the Registration
Agreement as provided in Exhibit A), from November 26, 1996 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable quarterly (subject to deferral as set forth
herein), in
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arrears, on March 1, June 1, September 1 and December 1 (each an "Interest
Payment Date") of each year, commencing March 1, 1997, until the principal
thereof is paid or made available for payment, and they shall be paid to the
Person in whose name the Debenture is registered at the close of business (New
York City time) on the regular record date for such interest instalment, which
shall be the February 15, May 15, August 15 and November 15 next preceding such
Interest Payment Date (the "Regular Record Date"). Interest will compound
quarterly and will accrue at the rate of 6.625% per annum (subject to
adjustment in the event the Shelf Registration Statement is not filed or is not
declared effective within, or is not continuously effective for, the time
periods specified in the Registration Agreement as provided in Exhibit A) on
any interest instalment in arrears for more than one quarter or during an
extension of an interest payment period as set forth in Section 3.12 hereof.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed will be computed on
the basis of the actual number of days elapsed. In the event that any date on
which interest is payable on the Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
If at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any state thereof, or any
other taxing authority, then, in any such case, the Company will pay as
additional interest ("Additional Interest") on the Debentures held by the
Property Trustee such amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying any
such taxes, duties, assessments or other governmental charges will be not less
than the amounts the Trust and the Property Trustee would
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have received had no such taxes, duties, assessments or other governmental
charges been imposed.
The principal of, premium, if any, and interest on the
Debentures shall be payable at the office or agency of the Company in the
United States maintained for such purpose and at any other office or agency
maintained by the Company for such purpose in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
The Debentures shall be redeemable as provided in Article XI
hereof.
The Debentures shall be subordinated and junior in right of
payment to Senior Indebtedness as provided in Article XII hereof.
The Debentures shall be convertible as provided in Article
XIII hereof.
SECTION 3.02. Denominations. The Debentures shall be
issuable only in registered form without coupons and only in denominations of
$50.00 in principal amount and integral multiples thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the 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.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Debentures; and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Debentures as in this Indenture provided and not otherwise.
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 manual signature, 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 3.04. Temporary Debentures. Pending the preparation
of definitive Debentures, the Company may execute, and upon a Company Order the
Trustee shall authenticate and deliver, temporary Debentures which are
typewritten, printed, lithographed or otherwise produced, in any authorized
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 any office or agency of the Company designated pursuant to
Section 10.02, without charge to the Holder. Upon surrender for cancelation of
any one or more temporary Debentures the Company shall execute and the Trustee
shall authenticate and make available for delivery 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.
SECTION 3.05. Registration, Registration of Transfer and
Exchange. (a) General. The Company shall cause to be kept at the Corporate
Trust Office of the
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Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.02 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Debentures
and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture
at an office or agency of the Company designated pursuant to Section 10.02 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Debentures of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations and 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 make available
for delivery, the Debentures which the Holder making the exchange is entitled
to receive.
All Debentures issued upon any registration of 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 registration of transfer or
exchange.
Every Debenture presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debentures, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
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Debentures, other than exchanges pursuant to Section 3.04, 9.06, 11.09 or 13.02
not involving any transfer.
(b) Transfer Restrictions. No Debenture shall be transfered
except in compliance with the Restrictive Legend unless otherwise determined by
the Company in accordance with applicable law; provided that upon any such
determination, the Company shall provide the Trustee an Officers' Certificate
and Opinion of Counsel evidencing such determination. Upon any distribution of
the Debentures to the holders of the Convertible Preferred Securities in
accordance with the Declaration, the Company and the Trustee shall enter into a
supplemental indenture pursuant to Section 9.01(f) to provide for transfer
procedures and restrictions with respect to the Debentures substantially
similar to those contained in the Declaration to the extent applicable in the
circumstances existing at the time of such distribution.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Debentures. If any mutilated Debenture is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Debenture of like tenor and principal amount and
bearing a number not contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount and 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
3.06, 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
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expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section 3.06 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.
The provisions of this Section 3.06 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 3.07. 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 (New York City time) on the Regular Record Date.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business (New York City time) on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Debenture and the
date of the proposed payment, and 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 on or prior
to the date of the
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proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause (a) provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business (New
York City time) on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
national securities exchange or quotation system on which the
Debentures may be listed, and, if so listed, upon such notice as may
be required by such securities exchange or quotation system, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (B), such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each
Debenture delivered under this Indenture upon registration of 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 (including in each such case
Additional Payments), which were carried by such other Debenture.
In the case of any Debenture which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Debenture whose Maturity is prior to such Interest Payment
Date),
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interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Debenture (or one or more Predecessor Debentures)
is registered at the close of business (New York City time) on such Regular
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Debenture that is converted, interest
whose Stated Maturity is 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 (including Compound Interest but excluding Additional Interest, if
any) on the Debentures being converted, which shall be deemed to be paid in
full. Subject to any right of the Holder of such Debenture or any Predecessor
Debenture to receive interest as provided in this paragraph and the second
paragraph of clause (a) of Section 13.02, the Company's delivery upon
conversion of the fixed number of shares of Common Stock into which the
Debentures are convertible (together with the cash payment, if any, in lieu of
fractional shares and Additional Interest, if any) 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
Payments, if any) accrued on such Debentures at the time of such conversion.
If any Debenture called for redemption is converted, any money deposited with
the Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Debenture shall (subject to any right of the Holder of such
Debenture or any Predecessor Debenture to receive interest as provided in this
paragraph) be paid to the Company upon a Company Request or, if then held by
the Company, shall be discharged from such trust.
SECTION 3.08. Persons Deemed Owners. Prior to due
presentment of a Debenture for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Debenture is registered as the owner of such Debenture for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Section 3.07) interest (including Additional Payments, if any) on such
Debenture and for all other purposes whatsoever, whether or not such Debenture
is overdue, and neither the Company, the Trustee nor any agent
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of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.09. Cancelation. All Debentures surrendered for
payment, redemption, registration of transfer or exchange or conversion shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancelation 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 3.09, except as expressly
permitted by this Indenture. All canceled Debentures held by the Trustee shall
be disposed of as directed by a Company Order; provided, however, that the
Trustee shall not be required to destroy the certificates representing such
canceled Debentures.
SECTION 3.10. Right of Set Off. Notwithstanding anything to
the contrary in this Indenture, the Company shall have the right to set off any
payment it is otherwise required to make hereunder to the extent the Company
has theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee.
SECTION 3.11. CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Debentures or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 3.12. Option to Extend Interest Payment Period. (a)
The Company shall have the right at any time during the term of the Debentures
to defer interest payments (excluding, for such purposes, payments with respect
to Additional Interest, if any) from time to time by extending the interest
payment period for successive periods (each, an "Extension Period") not
exceeding 20 consecutive quarters for each such period; provided no Extension
Period may
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extend beyond the Stated Maturity of the Debentures. On each Interest Payment
Date during an Extension Period, the Company shall pay all accrued and unpaid
Additional Interest on the Debentures. At the end of each Extension Period,
the Company shall pay all interest then accrued and unpaid (including accrued
and unpaid Additional Interest) together with interest thereon compounded
quarterly at the rate specified for the Debentures (as provided in Exhibit A
hereto) to the extent permitted by applicable law ("Compound Interest");
provided that during any Extension Period, the Company shall (i) not declare or
pay dividends on, or make a distribution with respect to, or redeem or purchase
or acquire, or make a liquidation payment with respect to, any of its capital
stock (other than (A) purchases or acquisitions of shares of Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security requiring the Company to purchase shares
of Common Stock, (B) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock or (C)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged), (ii) not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company that rank pari passu
with or junior to the Debentures and (iii) not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee). Prior to the
termination of any such Extension Period, the Company may further extend such
Extension Period; provided that such Extension Period, together with all such
previous and further extensions thereof, may not exceed 20 consecutive quarters
and may not extend beyond the Stated Maturity of the Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due,
the Company may commence a new Extension Period, subject to the above
requirements. No interest or any other payment with respect to the Debentures
(other than payments with respect to Additional Interest, if any, which the
Company shall not have the right to defer) shall be due and payable during an
Extension Period.
(b) If the Property Trustee is the sole Holder of the
Debentures at the time the Company selects an Extension
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Period, the Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extension Period at
least one Business Day prior to the earlier of (i) the date the distributions
on the Convertible Preferred Securities are payable or (ii) if the Convertible
Preferred Securities are listed on a national securities exchange or quotation
system, the date the Trust is required to give notice to such self-regulatory
organization or to holders of the Convertible Preferred Securities of the
record date or the date such distributions are payable, but in any event not
less than 10 Business Days prior to such record date. The Company shall cause
the Regular Trustees to give notice of the Company's selection of such
Extension Period to the holders of the Convertible Preferred Securities.
(c) If the Property Trustee is not the sole Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days prior to the
earlier of (i) the next succeeding Interest Payment Date or (ii) if the
Convertible Preferred Securities are listed on a national securities exchange
or quotation system, the date the Company is required to give notice to such
self-regulatory organization or to Holders of the Debentures on the record or
payment date of such related interest payment, but in any event not less than
two Business Days prior to such record date.
(d) The quarter in which any notice is given pursuant to
paragraphs (b) and (c) hereof shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under paragraph (a) hereof.
SECTION 3.13. Paying Agent, Security Registrar and Conversion
Agent. The Trustee will initially act as Paying Agent, Security Registrar and
Conversion Agent. The Company may change any Paying Agent, Security Registrar,
co-registrar or Conversion Agent without prior notice. The Company or any of
its Affiliates may act in any such capacity. The Trustee is entitled to the
protections of Article VI in its capacity as Paying Agent, Security Registrar
and Conversion Agent.
SECTION 3.14. Global Debentures. (a) In connection with a
Dissolution Event:
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(i) The Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for one or more global
certificates in an aggregate principal amount up to the aggregate
principal amount of all Outstanding Debentures (the "Global
Debentures"), to be registered in the name of the Depositary, or its
nominee or nominees, and delivered by the Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company upon any such
presentation shall execute Global Debentures in such aggregate
principal amount or amounts as instructed by the Regular Trustees and
deliver the same to the Trustee for authentication and delivery in
accordance with this Indenture. Payments on the Debentures issued as
Global Debentures will be made to the Depositary.
(ii) Any Convertible Preferred Security Certificate which
represents Convertible Preferred Securities other than Convertible
Preferred Securities held by the Depositary or its nominee or nominees
(each, a "Certificated Convertible Preferred Security") will be deemed
to represent beneficial interests in Debentures in certificated form
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the
Certificated Convertible Preferred Securities until such Convertible
Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time or times such
Convertible Preferred Security Certificates will be canceled and
Debentures, registered in the names of the holders of such Convertible
Preferred Security Certificates or the transferees of such holders of
such Convertible Preferred Security Certificates, as the case may be,
with aggregate principal amounts equal to the aggregate liquidation
amounts of the Convertible Preferred Security Certificates 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.
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(b) A Global Debenture may be transfered, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
or its nominee.
(c) If the Depositary notifies the Company that it is
unwilling or unable to continue as a depositary for the Global Debentures and
no successor depositary shall have been appointed, or 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, the Company will execute
and, subject to Section 3.05 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, fully registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debentures in exchange for such Global
Debentures. In addition, upon an Event of Default or if the Company may at any
time determine that the Debentures shall no longer be represented by Global
Debentures, in such event the Company will execute and, subject to Section 3.05
of this Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery the Debentures in definitive, fully registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debentures in exchange for
such Global Debentures. Upon the exchange of the Global Debentures for such
Debentures in definitive, fully registered form without coupons, in authorized
denominations, the Global Debentures shall be canceled by the Trustee. Such
Debentures in definitive, fully registered form issued in exchange for the
Global Debentures 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.
(d) Every Global Debenture authenticated and delivered
hereunder shall bear a legend in substantially the following form, in capital
letters and bold-face type:
THIS SECURITY IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS
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REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A DEBENTURE
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
(e) If the Depositary is The Depository Trust Company, the
Global Debenture authenticated and delivered hereunder shall also bear a legend
in substantially the following form, in capital letters and bold-face type:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Debentures herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (a) either (i) all Debentures theretofore
authenticated and delivered (other than (A) Debentures which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (B) 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 10.03) have been delivered to the Trustee for cancelation; or (ii)
either (A) all such Debentures not theretofore delivered to the Trustee
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for cancelation have become due and payable, (B) will become due and payable at
their Stated Maturity within one year or (C) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the
Company; and the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Debentures not theretofore delivered
to the Trustee for cancelation, for principal and interest (including
Additional Payments, if any) to the date of such deposit (in the case of
Debentures which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be, along with an accountants' certificate
stating such funds are sufficient; (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 6.07
and, if money shall have been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section 4.01, the obligations of the Trustee under
Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 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, premium, if any, and interest for whose
payment such money has been deposited with the Trustee. All moneys deposited
with the Trustee pursuant to Section 4.01 (and held by it or any Paying Agent)
for the payment of Debentures subsequently converted shall be returned to the
Company upon a Company Request.
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ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default,"
wherever used herein, means any one of the following events that has occurred
and is continuing (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article XII or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) failure for 30 days to pay interest on the Debentures,
including any Additional Payments in respect thereof, when due;
provided that a valid extension of an interest payment period will not
constitute a default in the payment of interest (including Compound
Interest, but excluding Additional Interest, if any) for this purpose;
(b) failure to pay principal of or premium, if any, on the
Debentures when due, whether at maturity, upon redemption, by
declaration of acceleration or otherwise;
(c) failure to observe or perform any other covenant contained
in this Indenture for 90 days after written notice to the Company by
the Trustee or by the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures specifying such failure
to observe or perform any such covenant, requiring it to be remedied
and stating that such notice is a notice of an Event of Default
hereunder;
(d) failure by the Company to deliver shares of its Common
Stock within 30 days of an election by a holder of Convertible
Preferred Securities to convert such Convertible Preferred Securities
in accordance with the Declaration and Section 13.02 hereof;
(e) entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt
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or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company to the entry of a decree or order for relief in
respect of itself in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or the filing by
the Company of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or state law, or the consent by
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
substantially all of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its debts
generally as they become due; or
(g) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the
distribution of Debentures to holders of Convertible Preferred
Securities in liquidation of the Trust, (ii) upon the redemption of
all outstanding Convertible Preferred Securities or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the
Declaration.
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A default under any other indebtedness of the Company or of
the Trust shall not constitute an Event of Default under this Indenture.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures may declare the principal of all
the Debentures and any other amounts payable hereunder to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal and all accrued
interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in this Article V, 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 interest (including Additional
Payments, if any) on all Debentures, (ii) the principal of any
Debentures which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and (iii) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of Debentures which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if (a) default is made in
the payment of any interest (including Additional Payments, if any) on any
Debenture
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when such interest becomes due and payable and such default continues for a
period of 30 days, or (b) default is made in the payment of the principal of
any Debenture at the Stated Maturity thereof, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Debentures, the
whole amount then due and payable on such Debentures for principal and interest
(including Additional Payments, if any) and, to the extent that payment thereof
shall be legally enforceable, interest on any overdue principal and on any
overdue interest (including Additional Payments, if any), at the rate borne by
the Debentures, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of
any judicial proceeding relative to the Company (or any other obligor upon the
Debentures), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07.
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No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Debentures. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the equal and ratable benefit of the Holders of the Debentures in respect
of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected. Subject to
Article XII, any money collected by the Trustee pursuant to this Article V
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest (including Additional Payments, if any), upon presentation of the
Debentures and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
first, to the payment of all amounts due the Trustee under
Section 6.07; and
second, to the payment of the amounts then due and unpaid for
principal of and interest (including Additional Payments, if any) on
the Debentures in respect of which or for the benefit of which such
money has been collected, equally and ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest (including Additional Payments,
if any), respectively.
SECTION 5.07. Limitation on Suits. Subject to Section 5.16,
no Holder of any Debenture shall have any right to institute any proceeding,
judicial or otherwise,
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with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (a) such Holder has previously given
written notice to the Trustee of a continuing Event of Default; (b) the Holders
of not less than 25% in aggregate principal amount of the Outstanding Debentures
shall have also made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder; (c) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it
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 aggregate
principal amount of the Outstanding Debentures; it being understood and intended
that no one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal and Interest and Convert. 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, premium, if
any, and (subject to Section 3.07) interest (including Additional Payments, if
any) on such Debenture on the respective Stated Maturities expressed in such
Debenture (or, in the case of redemption, on the Redemption Date) and to
convert such Debenture in accordance with Article XIII and to institute suit
for the enforcement of any such payment and right to convert, and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively
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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 with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures in the last paragraph of Section 3.06, 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 any Debenture to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article V 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; provided that (a) such direction shall not be in conflict with any
rule of law or with this Indenture; and (b) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 5.13. Waiver of Past Defaults. Subject to Section
9.02 hereof, the Holders of not less than a majority in aggregate principal
amount of the Outstanding Debentures may on behalf of the Holders of all the
Debentures waive any past default hereunder and its consequences, except a
default (a) in the payment of the principal of, premium, if any, or interest
(including Additional Payments, if any) on any Debenture (unless such
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default has been cured and a sum sufficient to pay all matured instalments of
interest and principal due otherwise than by acceleration has been deposited
with the Trustee); or (b) in respect of a covenant or provision of this
Indenture that under Article IX cannot be modified or amended without the
consent of the Holder of each Outstanding Debenture affected; 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 Convertible Preferred 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 Convertible Preferred Securities shall have consented to such
waiver.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section 5.14 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Trustee or in any suit
for the enforcement of the right to receive the principal of, premium, if any,
and interest (including Additional Payments, if any) on any Debenture or to
convert any Debenture in accordance with Article XIII.
SECTION 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law
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and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
SECTION 5.16. Enforcement by Holders of Convertible Preferred
Securities. Notwithstanding any other provision of this Indenture, if an Event
of Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay principal of, premium, if any, or interest
(including Compound Interest, but excluding, for such purposes, Additional
Interest, if any) on the Debentures on the date such principal, premium or
interest is otherwise payable, the Company acknowledges that, in such event, a
holder of Convertible Preferred Securities may institute a Direct Action for
payment on or after the respective due date specified in the Debentures. The
Company may not amend this Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of all the holders of
Convertible Preferred Securities. Notwithstanding any payment made to such
holder of Convertible Preferred Securities by the Company in connection with a
Direct Action, the Company shall remain obligated to pay the principal of,
premium, if any, and interest (including Additional Payments, if any) on the
Debentures held by the Trust or the Property Trustee and the Company shall be
subrogated to the rights of the holder of such Convertible Preferred Securities
with respect to payments on the Convertible Preferred Securities to the extent
of any payments made by the Company to such holder in any Direct Action. The
holders of Convertible Preferred Securities will not be able to exercise
directly any other remedy available to the Holders of the Debentures.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that the repayment of such funds or
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liability is not reasonably assured to it under the terms of this Indenture or
indemnity satisfactory to the Trustee against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.01.
SECTION 6.02. Notice of Defaults. The Trustee shall give the
Holders notice of any default hereunder as and to the extent provided by the
Trust Indenture Act. For the purpose of this Section 6.02, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of Section 6.01:
(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, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall 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;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
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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 security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to reasonable
examination of the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without
negligence or wilful misconduct, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 6.04. 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.
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SECTION 6.05. May Hold Debentures. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Debentures
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company
agrees (a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder; (b) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable expenses,
fees, disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and (c) to indemnify the Trustee and any predecessor Trustee, and
their respective officers, directors, agents or employees for, and to hold each
of them harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(f) or Section
5.01(g), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 6.07 shall survive the
termination of this Indenture.
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SECTION 6.08. Disqualification; Conflicting Interests. If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in The City of New York. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.09, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.09, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VI.
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 VI 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 the Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Debentures, delivered to the Trustee and 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
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competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with any provision of
this Indenture applicable to it 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
(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (x) the Company by Board Resolution may remove the
Trustee, or (y) 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
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. In
addition, so long as no default or Event of Default has occurred and is
continuing, the Trustee may be appointed or removed without cause at any time
by the Company.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate 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
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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, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
(g) No appointment of any successor Trustee shall be
effective until all amounts not subject to a good faith dispute which are known
to be owed to the Trustee and which are then due have been paid; provided that
upon such payment, within five Business Days of a request by the Company, the
Trustee shall certify that all such amounts have been paid, and that a
successor Trustee may be appointed.
SECTION 6.11. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided that on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transfering 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. Upon request of any such successor Trustee,
the Company shall execute any and all instruments required to more fully and
certainly vest in and confirm to such successor Trustee all such rights, powers
and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article VI.
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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 the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided such corporation shall be otherwise
qualified and eligible under this Article VI. 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 with
the same effect as if such successor Trustee had itself authenticated such
Debentures.
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).
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than February 15 and August 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
SECTION 7.02. 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
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furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 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 duties of the Trustee, shall be as provided by 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
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) Within 60 days after
May 15 of each year, commencing in 1997, the Trustee shall transmit by mail to
Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each national securities
exchange or quotation system upon which the Debentures are then listed or
quoted, with the Commission (if required) and with the Company. The Company
will notify the Trustee if and when the Debentures are listed on any national
securities exchange or quotation system.
SECTION 7.04. Reports by Company. The Company shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports with respect to the Debentures, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided by the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
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Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely on Officers' Certificates).
The Company shall also provide to the Trustee on a timely
basis such information as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal
Revenue Service and the Holders of the Debentures relating to original issue
discount, if any, including, without limitation, Form 1099-OID or any successor
form.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge with or into any other
Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer
or lease, all or substantially all of the properties and assets of the
Company on a consolidated basis shall be a corporation, limited
liability company, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest
(including Additional Payments, if any) on all the Debentures and the
performance or compliance with every covenant of this Indenture on the
part of the Company to be performed or complied with and shall have
provided for conversion rights in accordance with Article XIII;
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(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article
VIII and that all conditions precedent herein provided for relating to
such transaction have been complied with.
This Section 8.01 shall only apply to a merger or
consolidation in which the Company is not the surviving corporation and to
conveyances, leases and transfers by the Company as transferor or lessor of all
or substantially all of its properties and assets on a consolidated basis.
SECTION 8.02. Successor Substituted. Upon any consolidation
of the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all the properties and
assets of the Company on a consolidated basis in accordance with Section 8.01,
the successor Person 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 Person had been
named as the Company herein, and thereafter the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Debentures.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the
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Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Debentures; or
(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(c) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XIII; or
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; provided that such action
pursuant to this clause (d) shall not materially and adversely affect
the interests of the Holders of the Debentures or, so long as any of
the Convertible Preferred Securities shall remain outstanding, the
holders of the Convertible Preferred Securities;
(e) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; or
(f) 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 3.05(b) or otherwise necessary, desirable or
appropriate in connection with the issuance of Debentures to holders
of Convertible Preferred Securities in the event of a distribution of
Debentures by the Trust if a Special Event occurs and is continuing.
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SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in
aggregate 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 under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debenture affected thereby, (a)
extend the Stated Maturity of the principal of, or any instalment of interest
(including Additional Payments, if any) on, any Debenture, or reduce the
principal amount thereof, or reduce the rate or extend the time for payment of
interest thereon, or extend the Extension Period, or reduce any premium payable
upon the redemption thereof, or change the 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 Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect (as to such Holder) the right to convert any Debenture as provided in
Article XIII (except as permitted by Section 9.01(c)), or modify the provisions
of this Indenture with respect to the subordination of the Debentures in a
manner adverse to the Holders, (b) reduce the percentage in aggregate 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, or (c) modify any of the provisions of this Section 9.02 or
Section 5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debenture affected thereby; provided
that if the Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders of a majority
in liquidation amount of Trust Securities shall have consented to such
supplemental indenture; provided further that if the consent of the Holder of
each Outstanding Debenture is required, such supplemental indenture shall not
be effective until each holder of the Trust Securities of the Trust shall have
consented to such supplemental indenture.
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It shall not be necessary for any Act of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article IX, 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
Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article XII in any manner which might
terminate or impair the rights of the Senior Indebtedness pursuant to such
subordination provisions.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this
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Article IX shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. Reference in Debentures to Supplemental
Indentures. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX 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 Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
ARTICLE X
Covenants; Representations and Warranties
SECTION 10.01. Payment of Principal and Interest. The
Company will duly and punctually pay the principal of, premium, if any, and
interest (including Additional Payments, if any) on the Debentures in
accordance with the terms of the Debentures and this Indenture.
SECTION 10.02. 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, where Debentures may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Debentures and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Debentures may be
presented or surrendered for any or all such purposes and may from time to time
rescind such
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designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.03. Money for Debenture Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, 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, premium 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
in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Debentures,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 10.03, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Debentures) in the making of any payment in respect of the Debentures, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by a Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee,
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such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on (including Additional Payments, if any) any Debenture and remaining
unclaimed for two years after such principal or interest has become due and
payable shall be paid to the Company on a Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of any 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 10.04. Statement by Officers as to Default. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not, to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any of
the material terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.05. Limitation on Dividends; Covenants as to the
Trust. (a) The Company covenants that so long as any Debentures are
Outstanding, if (i) there shall have occurred and be continuing any event that
with the giving of notice or the lapse of time or both, would constitute an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee, or (iii) the Company has
exercised its option to defer interest payments on the Debentures by extending
the interest payment period and such period, or any extension thereof, shall be
continuing, then the Company shall (x) not declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (1)
purchases or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or the satisfaction by the Company of its obligations
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pursuant to any contract or security requiring the Company to purchase shares
of Common Stock, (2) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock or (3)
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), (y) not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company that rank pari passu
with or junior to the Debentures and (z) not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee).
(b) The Company also covenants and agrees (i) that it may
transfer Trust Common Securities only to a Related Party, and that it shall,
together with its Related Parties, maintain 100% ownership of the Trust Common
Securities; provided, however, that any permitted successor of the Company
hereunder may succeed to the Company's ownership of such Trust Common
Securities and (ii) that it shall use its reasonable efforts, consistent with
the terms and provisions of the Declaration, to cause the Trust (A) to remain a
statutory business trust, except in connection with the distribution of the
Debentures to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities, or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration, and (B) to otherwise
continue to be classified as a grantor trust for United States Federal income
tax purposes.
SECTION 10.06. Payment of Expenses of the Trust. In
connection with the offering, sale and issuance of the Debentures to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, the Company shall:
(a) pay for all costs, fees and expenses (including all fees
and expenses of its counsel) relating to the offering, sale and
issuance of the Debentures, including commissions, discounts and
expenses payable pursuant to the Purchase Agreement and compensation
of the Trustee under this Indenture in accordance with the provisions
of Section 6.07 of this Indenture;
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(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay
for all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including
commissions, discounts and expenses in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the
costs and expenses relating to the operation of the Trust, including
without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets); and
(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.
ARTICLE XI
Redemption of Debentures
SECTION 11.01. Optional Redemption. The Company shall have
the right to redeem the Debentures, in whole or in part, at any time or from
time to time, on or after December 1, 1999, upon not less than 15 nor more than
60 days' notice, at the following redemption prices (expressed as percentages
of the principal amount of Debentures to be redeemed), plus, in each case,
accrued and unpaid interest (including Additional Payments, if any) to, but
excluding the Redemption Date, if redeemed during the 12-month period beginning
December 1:
Percentage of
Principal
Year Amount
---- ------
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.6375%
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.9750%
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.3125%
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2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.6500%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.9875%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.3250%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.6625%
and at a redemption price equal to 100% of the principal amount of the
Debentures to be redeemed plus accrued and unpaid interest (including
Additional Payments, if any) to the Redemption Date, if redeemed on or after
December 1, 2006. Any redemption pursuant to this Section 11.01 shall be made
pursuant to the provisions of Sections 11.03 through 11.09 hereof.
SECTION 11.02. Tax Event Optional Redemption. If a Tax Event
has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular
Trustees shall have been informed by tax counsel rendering the
Dissolution Tax Opinion that a No Recognition Opinion cannot be
delivered to the Trust;
then, notwithstanding Section 11.01, the Company shall have the right upon not
less than 15 nor more than 60 days' notice to the Holders of the Debentures to
redeem the Debentures in whole (but not in part) for cash at a redemption price
equal to 100% of the principal amount of the Debentures plus accrued and unpaid
interest (including Additional Payments, if any) within 90 days following the
occurrence of such Tax Event (the "90-Day Period"); provided, however, that if,
at the time there is available to the Company or the Trust the opportunity to
eliminate within the 90-Day Period, the Tax Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure which, in the sole judgment of the Company, has or
will cause no material adverse effect on the Company, the Trust or the holders
of the Trust Securities and will involve no material cost (a "Ministerial
Action"), the Company or the Trust shall pursue such Ministerial Action in lieu
of redemption; and provided further that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration.
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SECTION 11.03. Applicability of Article. Redemption of
Debentures at the election of the Company, as permitted by Sections 11.01 and
11.02, shall be made in accordance with this Article XI.
SECTION 11.04. Election to Redeem; Notice to Trustee. The
election of the Company to redeem Debentures pursuant to Section 11.01 or 11.02
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 45 days and no more than
90 days prior to the Redemption Date fixed by the Company, notify the Trustee
in writing of such Redemption Date and of the principal amount of Debentures to
be redeemed and provide a copy of the notice of redemption given to Holders of
Debentures to be redeemed pursuant to Section 11.05.
SECTION 11.05. Selection by Trustee of Debentures to Be
Redeemed. If less than all the Debentures are to be redeemed (unless such
redemption affects only a single Debenture), 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 such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to $50.00
or any integral multiple thereof) of the principal amount of the Debentures.
The Trustee shall promptly notify the Company in writing of
the Debentures selected for redemption as aforesaid and, in case of any
Debentures selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Debenture, whether such
Debenture is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Debenture shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Debenture.
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 Debentures redeemed or to be redeemed only in
part, to the
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portion of the principal amount of such Debentures which has been or is to be
redeemed.
SECTION 11.06. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 15
nor more than 60 days prior to the Redemption Date, to each Holder of
Debentures to be redeemed, at such Holder's address appearing in the Security
Register.
All notices of redemption shall identify the Debentures to be
redeemed (including, if relevant, the CUSIP number) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture to be redeemed and
that interest thereon will cease to accrue on and after said date, and
(d) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price.
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
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.07. Deposit and Payment of Redemption Price.
Prior to 10:00 a.m. (New York City time) on the Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price of,
plus (except if the Redemption Date shall be an Interest Payment Date) accrued
and unpaid interest (including Additional Payments, if any) on all the
Debentures which are to be redeemed on that date. Such redemption payment
shall be made to the Holders prior to the close of business (New York City
time) on the Redemption Date or such earlier time as the Company determines.
If any Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the
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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 3.07) be paid to the Company upon a Company Request
or, if then held by the Company, shall be discharged from such trust.
SECTION 11.08. Debentures Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Debentures so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued and unpaid interest
(including Additional Payments, if any)) such 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, together with accrued and unpaid interest (including Additional
Payments, if any) to the Redemption Date; provided, however, that instalments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Debentures, or one or more Predecessor
Debentures, registered as such at the close of business (New York City time) on
the relevant Record Dates according to the terms and the provisions of Section
3.07.
If any Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Debenture.
SECTION 11.09. Debentures Redeemed in Part. In the event of
any redemption in part, the Company shall not be required (i) to issue,
register the transfer of or exchange any Debenture during a period beginning at
the opening of business (New York City time) 15 Business Days before any
selection for redemption of Debentures and ending at the close of business (New
York City time) on the earliest date on which the relevant notice of redemption
is deemed to have been given to all Holders of Debentures to be so redeemed or
(ii) to 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 a place of payment therefor (with,
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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.
SECTION 11.10. No Sinking Fund. The Debentures are not
entitled to the benefit of any sinking fund.
ARTICLE XII
Subordination of Debentures
SECTION 12.01. Agreement to Subordinate. The Company
covenants and agrees, and each Holder of Debentures by such Holder's acceptance
thereof likewise covenants and agrees, that all Debentures shall be issued
subject to the provisions of this Article XII; and each Holder of a Debenture,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions. The payment by the Company of the
principal of, premium, if any, and interest (including Additional Payments, if
any) on all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full in money of all existing and future Senior Indebtedness,
whether outstanding at the date of this Indenture or thereafter incurred;
provided, however, that no provision of this Article XII shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 12.02. Default on Senior Indebtedness. In the event
and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness continuing beyond the period of grace, if any, specified in the
instrument evidencing such Senior Indebtedness, unless and until such default
shall have been cured or waived or shall have ceased to exist, or in the event
that the maturity of any Senior Indebtedness has been accelerated because of a
default, or if an "Event of Default" (as
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defined therein) has occurred and is continuing under the Credit Facility that
would permit the lenders under such Credit Facility to accelerate the maturity
thereof or demand payment in full, then no payment shall be made by the Company
with respect to the principal of (including redemption payments, if any),
premium, if any, or interest (including Additional Payments, if any) on the
Debentures.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 12.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 12.03. Liquidation; Dissolution; Bankruptcy. Upon
any payment by the Company or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution, winding up, liquidation or reorganization of the Company, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full in money before any
payment is made on account of the principal, premium, if any, or interest
(including Additional Payments, if any) on the Debentures; and upon any such
dissolution, winding up, liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Debentures
or the Trustee would be entitled, except for the provisions of this Article
XII, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro
rata to such holders on the
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basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in full in money, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the Holders of the Debentures before all Senior Indebtedness is
paid in full in money, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article XII, the words, "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XII with respect to the Debentures to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the
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Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of all or substantially all
its properties and assets on a consolidated basis to another Person upon the
terms and conditions provided for in Article VIII hereof shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 12.03 if such other Person shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the conditions stated in
Article VIII hereof. Nothing in Section 12.02 or in this Section 12.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
6.07 hereof.
SECTION 12.04. Subrogation. Subject to the payment in full
in money of all Senior Indebtedness, the rights of the Holders of the
Debentures shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company, as the case may be, applicable to such Senior
Indebtedness until the principal of, premium, if any, and interest (including
Additional Payments, if any) on the Debentures shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders
of such Senior Indebtedness of any cash, property or securities to which the
Holders of the Debentures or the Trustee would be entitled except for the
provisions of this Article XII, and no payment pursuant to the provisions of
this Article XII, to or for the benefit of the holders of such Senior
Indebtedness by Holders of the Debentures or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XII are and are intended solely for the purposes of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XII or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Debentures the principal of,
premium, if any, and interest (including Additional Payments, if any) on the
Debentures as and when the same shall become due and payable in accordance
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with their terms, or is intended to or shall affect the relative rights of the
Holders of the Debentures and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XII of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XII, the Trustee, subject to the provisions of
Section 6.03, and the Holders of the Debentures, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, as the case may be,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION 12.05. Trustee to Effectuate Subordination. Each
Holder of Debentures by such Holder's acceptance thereof authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes.
SECTION 12.06. Notice by the Company. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company which would prohibit the making of any payment of monies to or
by the Trustee in respect of the Debentures pursuant to the provisions of this
Article XII. Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in
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respect of the Debentures pursuant to the provision of this Article XII, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office of the Trustee from the Company or
a holder or holders of Senior Indebtedness or from any trustee therefor; and
before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.03 hereof, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 12.06 at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest (including Additional Payments, if
any) on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall be fully protected and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 6.03, shall
be entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the right of such Person under this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.07. Rights of the Trustee; Holders of Senior
Indebtedness. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XII in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of
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Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are set forth in this Article XII, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Section 6.03, the Trustee
shall not be liable to any holder of such Senior Indebtedness if it shall pay
over or deliver to Holders of Debentures, the Company or any other Person money
or assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article XII or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article XII and
no implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
SECTION 12.08. Subordination May Not Be Impaired. No right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of the Debentures
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Debentures to the
holders of Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter,
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such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the same
or any agreement under which such Senior Indebtedness is outstanding;
(ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Senior
Indebtedness;
(iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 12.09. Amendment to Subordination Provisions. The
Company covenants and agrees, and each Holder of Debentures by such Holder's
acceptance thereof likewise covenants and agrees, for the benefit of the
lenders under the Credit Facility, that none of (i) the definitions of "Senior
Indebtedness" or "Credit Facility", (ii) any other definition contained herein
concerning the subordination of the Debentures and (iii) the provisions of
Article XII of this Indenture shall be modified or amended without the written
consent of such lenders.
ARTICLE XIII
Conversion of Debentures
SECTION 13.01. Conversion Rights. Subject to and upon
compliance with the provisions of this Article XIII, the Debentures are
convertible, at the option of the Holder thereof, at any time beginning 90 days
following the first date of original issuance of the Convertible Preferred
Securities and on or before the close of business (New York City time) on
December 1, 2026, into fully paid and nonassessable shares of Common Stock of
the Company at an initial conversion rate of 1.339 shares of Common Stock for
each $50.00 in aggregate principal amount of Debentures (equal to a conversion
price of approximately $37.34 per share of Common Stock), subject to adjustment
as described in this Article XIII. 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 Common Stock (calculated as to each conversion
to the nearest 1/100th of a share) obtained by dividing the principal
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amount of the Debentures to be converted by such conversion price. In case a
Debenture or portion thereof is called for redemption, either at the option of
the Company or pursuant to a Tax Event, such conversion right in respect of the
Debenture or portion so called shall expire at the close of business (New York
City time) on the fifth Business Day immediately preceding the corresponding
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
SECTION 13.02. Conversion Procedures. (a) In order to
convert all or a portion of the Debentures, the Holder thereof shall deliver to
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 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 Convertible
Preferred Securities may exercise its right under the Declaration to convert
such Convertible Preferred Securities into 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 Convertible Preferred Security for a portion of the
Debentures held by the Trust (at an exchange rate of $50.00 in aggregate
principal amount of Debentures for each Convertible Preferred Security) and
(ii) to immediately convert such Debentures, on behalf of such holder, into
Common Stock of the Company pursuant to this Article XIII and, if such
Convertible Preferred Securities are in definitive form, surrendering such
Convertible Preferred Securities, duly endorsed or assigned to the Company or
in blank. So long as any Convertible 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 Convertible
Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder will
be entitled to receive the interest payable on the subsequent Interest Payment
Date on the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding
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sentence, in the case of any Debenture which is converted, interest whose
Stated Maturity is 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
(including Additional Payments, if any) on the Debentures being converted,
which shall be deemed to be paid in full. If any Debenture called for
redemption is converted, any money deposited with the Trustee or with any
Paying Agent or so segregated and held in trust for the redemption of such
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 3.07 and this paragraph) be paid to the Company upon a Company Request
or, if then held by the Company, shall be discharged from such trust.
Each conversion shall be deemed to have been effected
immediately prior to the close of business (New York City time) on the day on
which the Notice of Conversion was received (the "Conversion Date") by the
Conversion Agent from the Holder or from a holder of the Convertible Preferred
Securities effecting a conversion thereof pursuant to its conversion rights
under the Declaration, as the case may be. The Person or Persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock as of the
Conversion Date. As promptly as practicable on or after the Conversion Date,
the Company shall issue and deliver at the office of the Conversion Agent,
unless otherwise directed by the Holder in the Notice of Conversion, a
certificate or certificates for the number of full shares of Common Stock
issuable upon such conversion, together with the cash payment, if any, in lieu
of any fraction of any share to the Person or Persons entitled to receive the
same. The Conversion Agent shall deliver such certificate or certificates to
such Person or Persons.
(b) Subject to any right of the Holder of such Debenture or
any Predecessor Debenture to receive interest as provided in the last paragraph
of Section 3.07 and the second paragraph of clause (a) of Section 13.02, the
Company's delivery upon conversion of the fixed number of shares of 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
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of the portion of Debentures so converted and any unpaid interest (including
Additional Payments, if any) accrued on such Debentures at the time of such
conversion.
(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the last reported sale price of such fractional interest on the date on which
the Debentures or Convertible Preferred Securities, as the case may be, were
duly surrendered to the Conversion Agent for conversion, or, if such day is not
a Trading Day, on the next Trading Day, and the Conversion Agent in turn will
make such payment, if any, to the Holder of the Debentures or the holder of the
Convertible 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 cancelation thereof in
accordance with Section 3.05.
(e) In effecting the conversion transactions described in
this Section 13.02, the Conversion Agent is acting as agent of the holders of
Convertible Preferred Securities (in the exchange of Convertible Preferred
Securities for Debentures) and as agent of the Holders of Debentures (in the
conversion of Debentures into 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
Convertible Preferred Securities in connection with the conversion of such
Convertible Preferred Securities in accordance with this Article XIII and (ii)
to convert all or a portion of the Debentures into Common Stock and thereupon
to deliver such shares of Common Stock in accordance with the provisions of
this Article XIII and to deliver to the Trust a new Debenture or Debentures for
any resulting unconverted principal amount.
SECTION 13.03. 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
any class of capital stock of the Company in shares of Common Stock,
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(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 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 Section 13.03(a) shall become
effective immediately after the record date in the case of a dividend
or other distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or
reclassification (or immediately after the record date if a record
date shall have been established for such event). If, as a result of
an adjustment made pursuant to this Section 13.03(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.
(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 within 45 days after the
record date mentioned in this Section 13.03(b)) 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 (as determined pursuant
to 13.03(f) below) 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
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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 Section 13.03(c), 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
Section 13.03(b), any dividend or distribution referred to in Section
13.03(a) and any dividend or distribution paid exclusively in cash),
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 Section 13.03(c) by a fraction of which the
numerator shall be the Current Market Price per share (determined as
provided in Section 13.03(f)) of the 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
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of Common Stock and the denominator shall be such Current Market Price
per share of the Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the
Reference Date. In the event that such dividend or distribution is
not so paid or made, the conversion price shall again be adjusted to
be the conversion price which would then be in effect if such dividend
or distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of
this Section 13.03(c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it
must in doing so consider the prices in such market over the same
period used in computing the Current Market Price per share of Common
Stock (determined as provided in Section 13.03(f)). For purposes of
this Section 13.03(c), any dividend or distribution that includes
shares of Common Stock or rights or warrants to subscribe for or
purchase shares of Common Stock shall be deemed instead to be (i) a
dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Common Stock
or such rights or warrants (making any conversion price reduction
required by this Section 13.03(c)) immediately followed by (ii) a
dividend or distribution of such shares of Common Stock or such rights
or warrants (making any further conversion price reduction required by
Section 13.03(a) or 13.03(b)), except (A) the Reference Date of such
dividend or distribution as defined in this 13.03(c) shall be
substituted as (1) "the record date in the case of a dividend or other
distribution," and (2) "the record date for the determination of
stockholders entitled to receive such rights or warrants" and (3) "the
date fixed for such determination" within the meaning of Sections
13.03(a) and 13.03(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
Section 13.03(a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all
regular cash dividends, if the annualized amount thereof per share of
Common Stock does not exceed 15% of the Current Market Price per share
determined as provided in
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Section 13.03(f) of the Common Stock on the Trading Day immediately
preceding the date of declaration of such dividend), the conversion
price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the effectiveness of the conversion price reduction
contemplated by this Section 13.03(d) by a fraction of which the
numerator shall be the Current Market Price per share (determined as
provided in Section 13.03(f)) of the Common Stock on the date fixed
for the payment of such distribution less the amount of cash so
distributed and not excluded as provided applicable to one share of
Common Stock and the denominator shall be such Current Market Price
per share of the 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 (as defined in Section 13.03(f)) of the Common
Stock on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of
shares of 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. In the event that such
dividend or distribution is not so paid or made, the conversion price
shall again be adjusted to be the conversion price which would then be
in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of the Company's Common Stock shall expire and such tender
or exchange offer shall involve the payment by the Company or such
Subsidiary of consideration per share of 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
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Market Price per share (determined as provided in Section 13.03(f)) of
the Common Stock on the Trading Day next succeeding the Expiration
Time, the conversion price shall be reduced so that the same shall
equal the price determined by multiplying the conversion price in
effect immediately prior to the effectiveness of the conversion price
reduction contemplated by this Section 13.03(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 multiplied by the Current Market Price per share
(determined as provided in Section 13.03(f)) of the Common Stock on
the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price per share (determined as provided in
Section 13.03(f)) of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time.
(f) For the purpose of any computation under Section
13.03(b), 13.03(c), 13.03(d) or 13.03(e), the "Current Market Price"
per share of Common Stock on any date in question shall be deemed to
be the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 20
Trading Days before, and ending not later than, the earlier of the day
in question or, if applicable, the day before the "ex" date with
respect to the issuance or distribution requiring such computation;
provided, however, that if another event occurs that would require an
adjustment pursuant to Section 13.03(a) through (e), inclusive, the
Board of Directors may make such adjustments to the Closing Prices
during such five Trading Day period as it deems appropriate to
effectuate the intent of the adjustments in this Section 13.03, in
which case any such
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determination by the Board of Directors shall be set forth in a Board
Resolution and shall be conclusive. For purposes of this paragraph,
the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades
regular way on the Nasdaq National Market or on such successor
quotation system or securities exchange as the Common Stock may be
quoted or listed or in the relevant market from which the Closing
Prices were obtained without the right to receive such issuance or
distribution, and (ii) when used with respect to any tender or
exchange offer, means the first date on which the Common Stock trades
regular way on such quotation system or securities exchange or in such
market after the Expiration Time of such offer.
(g) The Company may make such reductions in the conversion
price, in addition to those required by Sections 13.03 (a) through
(e), as it considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of capital stock (or
rights to acquire capital stock) or from any event treated as such for
income tax purposes.
(h) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the conversion price; provided, however, that any
adjustments which by reason of this Section 13.03(h) are not required
to be made shall be carried forward and taken into account in
determining whether any subsequent adjustment shall be required.
(i) If any action would require adjustment of the conversion
price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the
amount of adjustment that has the highest absolute value to the Holder
of the Debentures.
SECTION 13.04. Reclassification, Consolidation, Merger or
Sale of Assets. In the event that the Company shall be a party to any
transaction (including without limitation (a) any recapitalization or
reclassification of the 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 the
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Common Stock), (b) any consolidation of the Company with, or merger of the
Company into, any other Person, or any merger of another Person into the
Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancelation of outstanding shares of Common Stock of
the Company), (c) any sale, transfer or lease of all or substantially all of
the assets of the Company or (d) any compulsory share exchange) pursuant to
which the Common Stock is converted into the right to receive other securities,
cash or other property, then lawful provision shall be made as part of the
terms of such transaction whereby the Holder of each Debenture then Outstanding
shall have the right thereafter to convert such Debenture only into the kind
and amount of securities, cash or other property receivable upon consummation
of such transaction by a holder of the number of shares of Common Stock of the
Company into which such Debenture could have been converted immediately prior
to such transaction.
The Company or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires the
Company's shares, as the case may be, shall make provision in its certificate
or articles of incorporation or other constituent document to establish such
right. Such certificate or articles of incorporation or other constituent
document shall provide for adjustments which, for events subsequent to the
effective date of such certificate or articles of incorporation or other
constituent document, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article XIII. The above provisions shall
similarly apply to successive transactions of the foregoing type.
SECTION 13.05. 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
Convertible Preferred Securities and the Debentures; and
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(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
Convertible Preferred Securities and the Debentures at their last
addresses as they appear upon the stock transfer books of the Company
and the Trust.
SECTION 13.06. 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 13.03(c) or 13.03(d), or (ii) authorize a tender or exchange offer that
would require an adjustment pursuant to Section 13.03(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 any stockholders of the Company shall be required, or of
the sale or transfer of all or substantially all of the assets of the Company
or of any compulsory share exchange whereby the 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; then the
Company shall (1) if any Convertible Preferred Securities are outstanding,
cause to be filed with the transfer agent for the Convertible Preferred
Securities, and shall cause to be mailed to the holders of record of the
Convertible Preferred Securities, at their last addresses as they shall appear
upon the stock transfer books of the Trust or (2) 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,
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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 13.07. Certain Defined Terms. The following
definitions shall apply to terms used in this Article XIII:
(a) "Closing Price" of any Common Stock on any day shall mean
the last reported sale price regular way on such day or, in case no
such sale takes place on such day, the average of the reported closing
bid and asked prices regular way of such Common Stock, in each case on
the Nasdaq National Market or, if the Common Stock is not quoted on
such market, on the principal national securities exchange on which
such Common 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 New
York Stock Exchange member firm selected from time to time by the
Board of Directors of the Company for that purpose or, if not so
available in such manner, as otherwise determined in good faith by the
Board of Directors.
(b) "Trading Day" shall mean a day on which securities are
traded on the national securities exchange or quotation system used to
determine the Closing Price.
SECTION 13.08. Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of Common
Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan, and the
issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the Company or
pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the
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date the Debentures were first issued, 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 XIII.
SECTION 13.09. 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 13.03(c) or 13.03(d) (including, without
limitation, dividends or distributions referred to in the last sentence of
Section 13.03(c)), the Holder of the Debentures, upon the conversion thereof
subsequent to the close of business (New York City time) on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the conversion price adjustment in respect of
such distribution, shall also be entitled to receive for each share of Common
Stock into which the Debentures are converted, the portion of the shares of
Common Stock, rights, warrants, evidences of indebtedness, shares of capital
stock, cash and assets so distributed applicable to one share of 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 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, quotation system or other market on which the Common Stock is then
traded and
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(ii) requires payment or delivery of such shares of 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
Common Stock receiving such distribution.
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 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 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
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 X or this Article XIII.
SECTION 13.11. Restrictions on Transfer of Common Stock
Issuable Upon Conversion. (a) Shares of Common Stock issued upon conversion
of a Debenture in respect of a restricted Convertible Preferred Security shall
bear such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Common Stock issued upon conversion of a
Debenture in respect of a restricted Convertible Preferred Security are to be
registered in a name other than that of the holder of such Convertible
Preferred Security, then the Person in whose name such shares of 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 Convertible Preferred Security.
Neither the Trustee nor any Conversion
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Agent or Registrar shall be required to register in a name other than that of
such holder shares of Common Stock issued upon conversion of such Convertible
Preferred Security not so accompanied by a properly completed certificate.
ARTICLE XIV
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 14.01. No Recourse. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Debenture, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Debentures or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to
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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.
TITANIUM METALS CORPORATION,
By:
---------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee,
By:
---------------------------
Name:
Title:
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EXHIBIT A
FORM OF DEBENTURE
[FACE OF DEBENTURE]
[Include if Debenture is in global form: THIS SECURITY 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 THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[Include if Debenture is in global form and The Depository
Trust Company is the Depositary: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED SIGNATORY OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE TRUST OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Include if Debenture is restricted: THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT
OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERED (X) PRIOR TO THE THIRD ANNIVERSARY OF THE ISSUANCE HEREOF (OR THE
ISSUANCE OF ANY PREDECESSOR SECURITY HERETO) OR (Y) IF LATER, BY ANY HOLDER
THAT WAS AN AFFILIATE OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS
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INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS SO SPECIFIED IN
THE INDENTURE (AS DEFINED BELOW) PRIOR TO THE EXPIRATION OF THE "40-DAY
RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER
THE SECURITIES ACT), A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR
THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE, (4)
TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE (PROVIDED THAT
CERTAIN HOLDERS SPECIFIED IN THE INDENTURE MAY NOT TRANSFER THIS SECURITY
PURSUANT TO THIS CLAUSE (4) PRIOR TO THE EXPIRATION OF THE "40-DAY RESTRICTED
PERIOD" (WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S UNDER THE
SECURITIES ACT), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT,
OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES; AND AGREES THAT IT WILL FURNISH TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
"QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A OR (2) AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER) REGULATION S UNDER THE
SECURITIES ACT.
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TITANIUM METALS CORPORATION
6-5/8% Convertible Junior Subordinated Debenture due 2026
of
Titanium Metals Corporation
No._________
$___________ CUSIP No.
TITANIUM METALS CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ___________, or
registered assigns, the principal sum of __________________ Dollars
($___________) on December 1, 2026 and to pay interest thereon from November
26, 1996 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable quarterly (subject
to deferral as set forth in the Indenture), in arrears, on March 1, June 1,
September 1 and December 1 (each an "Interest Payment Date") of each year,
commencing March 1, 1997, until the principal thereof is paid or made available
for payment, and they shall be paid to the Person in whose name the Debenture
is registered at the close of business (New York City time) on the regular
record date for such interest instalment, which shall be the February 15, May
15, August 15 and November 15 next preceding such Interest Payment Date (the
"Regular Record Date").
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
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entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
TITANIUM METALS CORPORATION,
By:
---------------------------
Name:
Title:
[Seal]
Attest:
---------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee,
By:
---------------------------
Name:
Title:
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[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of a duly authorized issue of securities
of the Company designated as its 6-5/8% Convertible Junior Subordinated
Debentures due 2026 (herein called the "Debentures"), limited in aggregate
principal amount to $180,412,400 in aggregate principal amount (or $207,474,300
if the over-allotment option is exercised in full), issued and to be issued
under an Indenture, dated as of November 20, 1996 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Debentures, and of the terms upon which the Debentures are, and
are to be, authenticated and delivered. The terms of the Debentures include
those stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Debentures are subject to, and
qualified by, all such terms, certain of which are summarized hereon, and
Holders are referred to the Indenture and the TIA for a statement of such
terms. No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Debenture as provided in the Indenture. All
terms used in this Debenture which are defined in the Indenture shall have the
meanings assigned to them in the Indenture. The Company will furnish to any
Holder upon written request and without charge a copy of the Indenture.
1. Interest. The Debentures shall bear interest at the rate
of 6.625% per annum (subject to adjustment in the event the Shelf Registration
Statement is not filed or is not declared effective within, or is not
continuously effective for, the time periods specified in the Registration
Agreement as provided in the third succeeding paragraph), from November 26,
1996 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable quarterly (subject to
deferral as set forth herein), in arrears, on
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March 1, June 1, September 1 and December 1 (each an "Interest Payment Date")
of each year, commencing March 1, 1997, until the principal thereof is paid or
made available for payment, and they shall be paid to the Person in whose name
the Debenture is registered at the close of business (New York City time) on
the regular record date for such interest instalment, which shall be the
February 15, May 15, August 15 and November 15 next preceding such Interest
Payment Date (the "Regular Record Date"). Interest will compound quarterly and
will accrue at the rate of 6.625% per annum (subject to adjustment in the event
the Shelf Registration Statement is not filed or is not declared effective
within, or is not continuously effective for, the time periods specified in the
Registration Agreement as provided in the third succeeding paragraph) on any
interest instalment in arrears for more than one quarter or during an extension
of an interest payment period as set forth below.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed
on the basis of the actual number of days elapsed. In the event that any date
on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States or any state thereof, or any
other taxing authority, then, in any such case, the Company shall pay as
additional interest ("Additional Interest") on the Debentures held by the
Property Trustee such amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying any
such taxes, duties, assessments or other governmental charges will be not less
than the amounts the Trust and the Property Trustee would
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have received had no such taxes, duties, assessments or other governmental
charges been imposed.
Pursuant to the Registration Agreement, dated November 20,
1996, among the Company, the Trust and the Initial Purchasers named in the
Purchase Agreement, the Company and the Trust have agreed that (i) they will,
at the Company's expense, within 90 days after the first date of original
issuance of the Convertible Preferred Securities, file the Shelf Registration
Statement, covering resales of the Convertible Preferred Securities (together
with the Guarantee), the Debentures and the Common Stock issuable upon
conversion thereof pursuant to Rule 415 under the Securities Act, (ii) the
Company and the Trust shall use best efforts to cause such Shelf Registration
Statement to be declared effective within 180 days after the first date of
original issuance of the Convertible Preferred Securities and (iii) the Company
and the Trust will maintain such Shelf Registration Statement continuously
effective under the Securities Act until the earliest of (x) the third
anniversary of the last date of original issuance of the Convertible Preferred
Securities, (y) such date as restrictions on resales shall terminate pursuant
to Rule 144(k) under the Securities Act or any successor rule thereto or (z)
such date as of which all the Convertible Preferred Securities, Debentures or
the Common Stock issued upon conversion thereof have been sold pursuant to such
Shelf Registration Statement. If the Company and the Trust fail to file the
Shelf Registration Statement within 90 days after the first date of original
issuance of the Convertible Preferred Securities pursuant to Section 2(a) of
the Registration Agreement then, at such time, the per annum interest rate on
the Debentures (including the rate of Compound Interest) will increase by 25
basis points. Such increase will remain in effect until the date on which the
Shelf Registration Statement is filed, on which date the interest rate on the
Debentures will revert to the interest rate originally borne by the Debentures
plus any increase in such interest rate pursuant to the following sentence. If
the Shelf Registration Statement is not declared effective within 180 days
after the first date of original issuance of the Convertible Preferred
Securities then, at such time and on each date that would have been the
successive 30th day following such time, the per annum interest rate on the
Debentures (which interest rate shall be the original interest rate on the
Debentures plus any increase or increases in such interest rate pursuant to the
preceding sentence and this sentence) will increase by an additional
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25 basis points; provided that the interest rate will not increase by more than
50 basis points pursuant to this sentence and will not increase by more than 75
basis points pursuant to this sentence and the preceding sentence. Such
increase or increases will remain in effect until the date on which the Shelf
Registration Statement is declared effective, on which date the interest rate
on the Debentures will revert to the interest rate originally borne by the
Debentures. However, if the Company and the Trust fail to keep the Shelf
Registration Statement continuously effective pursuant to Section 2(b) of the
Registration Agreement, then at such time as the Shelf Registration Statement
is no longer effective and on each date thereafter that is the 30th day
subsequent to such time and until the earlier of (i) such date that the Shelf
Registration Statement is again deemed effective, (ii) the date that is the
third anniversary of the last date of original issuance of the Convertible
Preferred Securities, (iii) such date as restrictions on resales shall
terminate pursuant to Rule 144(k) under the Securities Act or any successor
rule thereto or (iv) such date as of which all of the Convertible Preferred
Securities, Debentures or the Common Stock issued upon conversion thereof are
sold pursuant to the Shelf Registration Statement, the per annum interest rate
on the Convertible Debentures will increase by an additional 25 basis points;
provided, however, that the interest rate will not increase by more than 50
basis points pursuant to this sentence. The Company will be permitted,
however, to suspend the use of the prospectus which forms a part of the Shelf
Registration Statement as provided in the Registration Agreement.
The principal of, premium, if any, and interest on the
Debentures shall be payable at the office or agency of the Company in the
United States maintained for such purpose and at any other office or agency
maintained by the Company for such purpose in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
2. Option to Extend Interest Payment Period. The Company
shall have the right at any time during the term of the Debentures to defer
interest payments (excluding, for such purposes, payments with respect to
Additional Interest,
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if any) from time to time by extending the interest payment period for
successive periods (each, an "Extension Period") not exceeding 20 consecutive
quarters for each such period; provided no Extension Period may extend beyond
the maturity date of the Debentures. On each Interest Payment Date during an
Extension Period, the Company shall pay all accrued and unpaid Additional
Interest on the Debentures. At the end of each Extension Period, the Company
shall pay all interest then accrued and unpaid (including Additional Interest)
together with interest thereon compounded quarterly at the rate specified in
paragraph 1 above to the extent permitted by applicable law ("Compound
Interest"); provided that during any Extension Period, the Company shall (a)
not declare or pay dividends on, or make a distribution with respect to, or
redeem or purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock (other than (i) purchases or acquisitions of shares of
Common Stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security requiring the Company
to purchase shares of Common Stock, (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock or (iii) 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),
(b) not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees) issued
by the Company that rank pari passu with or junior to the Debentures and (c)
not make any guarantee payments with respect to the foregoing (other than
pursuant to the Guarantee). Prior to the termination of any such Extension
Period, the Company may further extend such Extension Period; provided that
such Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the maturity
date of the Debentures. Upon the termination of any Extension Period and the
payment of all amounts then due, the Company may commence a new Extension
Period, subject to the above requirements. No interest or any other payment
(except for Additional Interest) shall be due and payable during an Extension
Period except at the end thereof.
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If the Property Trustee is the sole Holder of the Debentures
at the time the Company selects an Extension Period, the Company shall give
written notice to the Regular Trustees, the Property Trustee and the Trustee of
its selection of such Extension Period at least one Business Day prior to the
earlier of (i) the date the distributions on the Convertible Preferred
Securities are payable or (ii) if the Convertible Preferred Securities are
listed on a national securities exchange or quotation system, the date the
Trust is required to give notice to such self-regulatory organization or to
holders of the Convertible Preferred Securities of the record date or the date
such distributions are payable, but in any event not less than 10 Business Days
prior to such record date.
If the Property Trustee is not the sole Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days prior to the
earlier of (i) the next succeeding Interest Payment Date or (ii) if the
Convertible Preferred Securities are listed on a national securities exchange
or quotation system, the date the Company is required to give notice to such
self-regulatory organization or to Holders of the Debentures on the record or
payment date of such related interest payment, but in any event not less than
two Business Days prior to such record date.
The quarter in which any notice is given pursuant to
paragraphs second and third of this Section 2 shall be counted as one of the 20
quarters permitted in the maximum Extension Period permitted under paragraph
one of this Section 2.
3. Paying Agent and Security Registrar. The Trustee will act
as Paying Agent, Security Registrar and Conversion Agent. The Company may
change any Paying Agent, Security Registrar, co-registrar or Conversion Agent
without prior notice. The Company or any of its Affiliates may act in any such
capacity.
4. Redemption. The Debentures are redeemable, in whole or in
part, at any time or from time to time, on or after December 1, 1999, upon not
less than 15 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount of Debentures to be
redeemed), plus accrued and unpaid interest
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(including Additional Payments, if any) to, but excluding the Redemption Date,
if redeemed during the 12-month period beginning December 1:
Percentage of
Principal
Year Amount
---- ------
1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.6375%
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.9750%
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.3125%
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.6500%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.9875%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.3250%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.6625%
and at a redemption price equal to 100% of the principal amount of the
Debentures to be redeemed, plus accrued and unpaid interest (including
Additional Payments, if any) to, but excluding, the Redemption Date, if
redeemed on or after December 1, 2006. On and after the Redemption Date,
interest ceases to accrue on the Debentures or portions of them called for
redemption.
The Debentures are subject to redemption in whole (but not in
part), at any time within 90 days, if a Tax Event (as defined in the
Declaration) shall occur and be continuing, at a redemption price equal to 100%
of the principal amount thereof plus accrued but unpaid interest (including
Additional Payments, if any) to the Redemption Date. On and after the
Redemption Date, interest ceases to accrue on the Debentures called for
redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 15 nor more than 60 days prior to the
Redemption Date, to each Holder of Debentures to be redeemed, at such Holder's
address appearing in the Security Register. Debentures in denominations larger
than $50.00 may be redeemed in part but only in integral multiples of $50.00.
In the event of a redemption of less than all of the Debentures, the Debentures
will be chosen for redemption by the Trustee in accordance with the Indenture.
If this Debenture is redeemed subsequent to a Regular Record
Date with respect to any Interest Payment Date specified above and on or prior
to such Interest Payment Date, then any accrued interest will be paid to the
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person in whose name this Debenture is registered at the close of business on
such record date.
5. Sinking Fund. The Debentures are not entitled to the
benefit of any sinking fund.
6. Subordination. The payment of the principal of, premium,
if any, and interest (including Additional Payments, if any) on all Debentures
is subordinated and junior in right of payment to the prior payment in full of
all existing and future Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred. Each Holder, by accepting a Debenture,
agrees to such subordination and authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and appoints the Trustee as its attorney-in-fact for
such purpose.
"Senior Indebtedness" means, with respect to the Company, (i)
the principal of, premium, if any, and interest in respect of, (A) indebtedness
of the Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, including
interest accruing on or after a bankruptcy or other similar event, whether or
not an allowed claim therein, (ii) all indebtedness, and all obligations to pay
fees and other amounts, under the Credit Facility, (iii) all capital lease
obligations of the Company, (iv) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding obligations to trade creditors), (v) all
obligations of the Company for the reimbursement of any letter of credit,
banker's acceptance, security purchase facility or similar credit transaction,
(vi) all obligations of the type referred to in clauses (i) through (v) above
of other Persons for the payment of which the Company is responsible or liable
as obligor, guarantor or otherwise, and (vii) all obligations of the type
referred to in clauses (i) through (vi) above of other Persons secured by any
lien on any property or asset of the Company (whether or not such obligation is
assumed by the Company), except in the cases of each of clauses (i) through
(vii) above for (1) any such indebtedness that is by its terms subordinated to
or pari passu with the Debentures and (2) any indebtedness between or among the
Company or its affiliates, including all other debt securities and
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guarantees in respect of those debt securities issued to (a) the Trust or a
trustee of such Trust or (b) any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is a financing
vehicle of the Company (a "Financing Entity") in connection with the issuance
by such Financing Entity of preferred securities or other securities which rank
pari passu with, or junior to, the Convertible Preferred Securities. Such
Senior Indebtedness shall continue to be Senior Indebtedness and entitled to
the benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
7. Conversion. The Holder of any Debenture has the right,
exercisable at any time beginning 90 days following the first date of original
issuance of the Convertible Preferred Securities and on or before the close of
business (New York City time) on December 1, 2026 (or, in the case of
Debentures called for redemption (either at the option of the Company or
pursuant to a Tax Event), on the fifth Business Day immediately preceding the
Redemption Date), to convert the principal amount thereof (or any portion
thereof that is an integral multiple of $50.00) into fully paid and
nonassessable shares of Common Stock of the Company at an initial conversion
rate of 1.339 shares of Common Stock for each $50.00 in aggregate principal
amount of Debentures (equal to a conversion price of approximately $37.34 per
share of Common Stock), subject to adjustment under certain circumstances. The
number of shares issuable upon conversion of a Debenture is determined by
dividing the principal amount of the Debenture converted by the conversion
price in effect on the Conversion Date. No fractional shares will be issued
upon conversion but a cash adjustment will be made for any fractional interest.
The Outstanding principal amount of any Debenture shall be reduced by the
portion of the principal amount thereof converted into shares of Common Stock.
To convert a Debenture, a Holder must (i) complete and sign a
conversion notice substantially in the form attached hereto, (ii) surrender the
Debenture to a Conversion Agent, (iii) furnish appropriate endorsements or
transfer documents if required by the Security Registrar or Conversion Agent
and (iv) pay any transfer or similar tax, if required. If a Notice of
Conversion is delivered on or after the Regular Record Date and prior to the
subsequent Interest Payment Date, the Holder will be entitled to receive the
interest payable on the subsequent Interest
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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 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 (including Additional Payments, if any)
on the Debentures being converted, which shall be deemed to be paid in full.
If any Debenture called for redemption is converted, any money deposited with
the Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such 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 3.07 and this paragraph) be paid to the Company upon
a Company Request or, if then held by the Company, shall be discharged from
such trust.
8. Registration, Transfer, Exchange and Denominations. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Debenture is registrable in the Security Register, upon
surrender of this Debenture for registration of transfer at the office or
agency of the Company in New York, New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debentures, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Debentures are issuable only in registered form without
coupons in denominations of $50.00 and integral multiples thereof. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Prior to due presentment
of this 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. In the event of redemption
or conversion of this Debenture in part only, a
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new Debenture or Debentures for the unredeemed or unconverted portion hereof
will be issued in the name of the Holder hereof upon the cancelation hereof.
9. Persons Deemed Owners. Except as provided in the
Indenture, the registered Holder of a Debenture may be treated as its owner for
all purposes.
10. Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for two years, the Trustee and the Paying Agent
shall pay the money back to the Company at its written request. After that,
Holders of Debentures entitled to the money must look to the Company for
payment unless an abandoned property law designates another Person and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
11. Defaults and Remedies. The Debentures shall have the
Events of Default as set forth in Section 5.01 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in aggregate principal amount of the then Outstanding Debentures by notice to
the Company and the Trustee may declare all the Debentures to be due and
payable immediately.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Debentures except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then
Outstanding Debentures issued under the Indenture may direct the Trustee in its
exercise of any trust or power. The Company must furnish annually compliance
certificates to the Trustee. The above description of Events of Default and
remedies is qualified by reference to, and subject in its entirety by, the more
complete description thereof contained in the Indenture.
12. Amendments, Supplements and Waivers. The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the
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rights and obligations of the Company and the rights of the Holders of the
Debentures under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Debentures at the time Outstanding, on behalf of the Holders of all the
Debentures, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Debenture shall be conclusive
and binding upon such Holder and upon all future Holders of this Debenture and
of any Debenture issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
13. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Debentures and may otherwise deal with the Company or an Affiliate with the
same rights it would have, as if it were not Trustee, subject to certain
limitations provided for in the Indenture and in the TIA. Any Agent may do the
same with like rights.
14. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Debentures or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Debentures by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Debentures.
15. Governing Law. THE DEBENTURES AND THE INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
16. Authentication. The Debentures shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee
or an authenticating agent.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Debenture to:
-------------------------------------
(Insert assignee's social security or
tax identification number)
---------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints agent to transfer this Debenture on the books of the
Company. The agent may substitute another to act for him or her.
Date:
-----------------------
------------------------------------------
(Sign exactly as your name appears on the
other side of this Debenture)
Signature Guarantee:*
-----------------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Debentures Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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NOTICE OF CONVERSION
To: Titanium Metals Corporation
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below
designated, into the common stock, $.01 par value (the "Common Stock"), of
Titanium Metals Corporation (the "Company"), in accordance with the terms of
the Indenture, between the Company and The Chase Manhattan Bank, as Trustee,
and directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other
than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Date: ________________
Number of Debentures to be converted ($50.00 or integral
multiples thereof): ___________________
If a name or names other than the undersigned, please indicate
in the spaces below the name or names in which the shares of Common Stock are
to be issued, along with the address or addresses of such person or persons.
-----------------------------------------
(Sign exactly as your name appears on the
the Debenture) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
-----------------------------------------
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Signature Guarantee:*
-------------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
