PLAYTEX PRODUCTS, INC., as Issuer
and
MARINE MIDLAND BANK, as Trustee
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INDENTURE
Dated as of January 29, 1999
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$50,000,000
6.0% Convertible Subordinated Notes due 2004
TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION.................................1
Section 101. Definitions.........................................1
Section 102. Other Definitions..................................14
Section 103. Compliance Certificates and Opinions...............15
Section 104. Form of Documents Delivered to Trustee.............15
Section 105. Acts of Holders....................................16
Section 106. Notices, Etc., to Trustee and the Company..........17
Section 107. Notice to Holders; Waiver..........................17
Section 108. Conflict with Trust Indenture Act..................18
Section 109. Effect of Headings and Table of Contents...........18
Section 110. Successors and Assigns.............................18
Section 111. Separability Clause................................18
Section 112 Benefits of Indenture..............................18
Section 113. GOVERNING LAW......................................18
Section 114. Legal Holidays.....................................19
Section 115. Schedules..........................................19
Section 116. Counterparts.......................................19
Section 117. No Set-Off.........................................19
Section 118. Incorporation by Reference of Trust Indenture Act..19
ARTICLE TWO THE SECURITIES.....................................20
Section 201. Form and Dating....................................20
Section 202. Execution and Authentication.......................21
Section 203. Temporary Securities...............................22
Section 204. Registrar, Registration of Transfer and Exchange...22
Section 205. Mutilated, Destroyed, Lost and Stolen Securities...24
Section 206. Payment of Interest; Interest Rights Preserved.....25
Section 207. Persons Deemed Owners..............................26
Section 208. Cancellation.......................................27
Section 209. Computation of Interest............................27
Section 210. Book-entry Provisions for Global Security..........27
Section 211. Special Transfer Provisions........................29
Section 212. Conversion Notices.................................32
ARTICLE THREE DEFEASANCE AND COVENANT DEFEASANCE.................32
Section 301. Company's Option to Effect Defeasance or Covenant
Defeasance.........................................32
Section 302. Defeasance and Discharge...........................32
Section 303. Covenant Defeasance................................33
Section 304. Conditions to Defeasance or Covenant Defeasance....33
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Section 305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions...36
Section 306. Reinstatement......................................36
ARTICLE FOUR REMEDIES...........................................37
Section 401. Events of Default..................................37
Section 402. Acceleration of Maturity; Rescission and Annulment.38
Section 403. Collection of Indebtedness and Suits for Enforcement
by Trustee.........................................39
Section 404. Trustee May File Proofs of Claim...................40
Section 405. Trustee May Enforce Claims Without Possession of
Securities.........................................41
Section 406. Application of Money Collected.....................41
Section 407. Limitation on Suits................................42
Section 408. Unconditional Right of Holders to Receive Principal,
Premium and Interest...............................42
Section 409. Restoration of Rights and Remedies.................43
Section 410. Rights and Remedies Cumulative.....................43
Section 411. Delay or Omission Not Waiver.......................43
Section 412. Control by Holders.................................43
Section 413. Waiver of Past Defaults............................44
Section 414. Undertaking for Costs..............................44
Section 415. Waiver of Stay, Extension or Usury Laws............44
Section 416. Remedies Subject to Applicable Law.................45
ARTICLE FIVE THE TRUSTEE........................................45
Section 501. Duties of Trustee..................................45
Section 502. Notice of Defaults.................................46
Section 503. Certain Rights of Trustee..........................47
Section 504. Trustee Not Responsible for Recitals, Dispositions
of Securities or Application of Proceeds Thereof...48
Section 505. Trustee and Agents May Hold Securities;
Collections; Etc...................................48
Section 506. Money Held in Trust................................48
Section 507. Compensation and Indemnification of Trustee and its
Prior Claim........................................49
Section 508. Conflicting Interests..............................49
Section 509. Corporate Trustee Required; Eligibility............50
Section 510. Resignation and Removal; Appointment of Successor
Trustee............................................50
Section 511. Acceptance of Appointment by Successor.............52
Section 512. Merger, Conversion, Consolidation or Succession to
Business...........................................52
Section 513. Preferential Collection of Claims Against Company..53
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ARTICLE SIX HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY........................................53
Section 601. Company to Furnish Trustee Names and Addresses of
Holders............................................53
Section 602. Disclosure of Names and Addresses of Holders.......54
Section 603. Reports by Trustee.................................54
Section 604. Reports by Company.................................54
ARTICLE SEVEN CONSOLIDATION, MERGER, SALE OF ASSETS..............55
Section 701. Company May Merge, Consolidate, Etc., Only on
Certain Terms......................................55
Section 702. Successor Substituted..............................56
ARTICLE EIGHT SUPPLEMENTAL INDENTURES............................57
Section 801. Supplemental Indentures and Agreements Without
Consent of Holders.................................57
Section 802. Supplemental Indentures and Agreements with Consent
of Holders.........................................57
Section 803. Execution of Supplemental Indentures and
Agreements.........................................59
Section 804. Effect of Supplemental Indenture...................59
Section 805. Conformity with Trust Indenture Act................59
Section 806. Reference in Securities to Supplemental
Indentures.........................................59
Section 807. Record Date........................................60
ARTICLE NINE COVENANTS..........................................60
Section 901. Payment of Principal, Premium and Interest.........60
Section 902. Maintenance of Office or Agency....................60
Section 903. Money for Security Payments to Be Held in Trust....61
Section 904. Corporate Existence................................62
Section 905. Payment of Taxes and Other Claims..................62
Section 906. Maintenance of Properties..........................63
Section 907. Insurance..........................................63
Section 908. Purchase of Securities upon a Change of Control....63
Section 909. Statement by Officers as to Default................67
Section 910. Waiver of Certain Covenants........................67
ARTICLE TEN REDEMPTION OF SECURITIES...........................68
Section 1001. Right of Redemption................................68
Section 1002. Applicability of Article...........................68
Section 1003. Election to Redeem; Notice to Trustee..............69
Section 1004. Selection by Trustee of Securities to Be Redeemed..69
Section 1005. Notice of Redemption...............................69
Section 1006. Deposit of Redemption Price........................70
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Section 1007. Securities Payable on Redemption Date..............71
Section 1008. Securities Redeemed or Purchased in Part...........71
ARTICLE ELEVEN SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture............71
Section 1102. Application of Trust Money.........................73
ARTICLE TWELVE SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness......73
Section 1202. Payment Over of Proceeds Upon Dissolution, etc.....73
Section 1203. Suspension of Payment When Senior Indebtedness in
Default............................................75
Section 1204. Payment Permitted if No Default....................76
Section 1205. Subrogation to Rights of Holders of Senior
Indebtedness.......................................76
Section 1206. Provisions Solely to Define Relative Rights........77
Section 1207. Trustee to Effectuate Subordination................78
Section 1208. No Waiver of Subordination Provisions..............78
Section 1209. Notice to Trustee..................................79
Section 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent..................................80
Section 1211. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.....80
Section 1212. Article Applicable to Paying Agents................80
Section 1213. No Suspension of Remedies..........................80
Section 1214. Trustee's Relation to Senior Indebtedness..........81
ARTICLE THIRTEEN CONVERSION OF SECURITIES...........................81
Section 1301. Conversion Privilege and Conversion Price..........81
Section 1302. Exercise of Conversion Privilege...................82
Section 1303. Fractions of Shares................................83
Section 1304. Adjustment of Conversion Price.....................83
Section 1305. No Adjustment......................................86
Section 1306. Other Adjustments..................................87
Section 1307. Adjustments for Tax Purposes.......................87
Section 1308. Notice of Adjustments of Conversion Price..........87
Section 1309. Notice of Certain Corporate Action.................88
Section 1310. Company to Reserve Common Stock....................88
Section 1311. Taxes on Conversions...............................88
Section 1312. Covenant as to Common Stock........................88
Section 1313. Cancellation of Converted Securities...............88
Section 1314. Provisions in Case of Reclassification,
Consolidation, Merger or Sale of Assets............89
Section 1315. Successive Adjustments.............................89
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EXHIBIT A Form of Security
EXHIBIT B Form of Conversion Notice
EXHIBIT C Form of Certification for Transfer or Exchange of Non-global
Restricted Security to Global Security
EXHIBIT D Form of Transferee Letter of Representation
EXHIBIT E Form of Legend for Book-Entry Securities
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of January 29, 1999
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
ss.310(a)(1) 509
(a)(2) 509
(b) 508, 510
ss.312(a) 601
(c) 602
ss.313(a) 603
(c) 603
ss.314(a) 604
(a)(4) 909
(c)(1) 103
(c)(2) 103
(e) 103
ss.315(a) 501(b)
(b) 502
(c) 501(a)
(d) 501(c), 503
(e) 414
ss.316(a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 412
(a)(1)(B) 413
(b) 408
(c) 807
ss.317(a)(1) 403
(a)(2) 404
ss.318(a) 108
----------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
vi
INDENTURE, dated as of January 29, 1999, between PLAYTEX PRODUCTS,
INC., a Delaware corporation (the "Company"), and MARINE MIDLAND BANK, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 6.0%
Convertible Subordinated Notes due 2004 (the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture;
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act; and
All acts and things necessary have been done to make (i) the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company
and (ii) this Indenture a valid agreement of the Company in accordance with the
terms of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(d) 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; and
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America.
The following terms shall have the meanings set forth in this Section:
"Administrative Agent" means Xxxxx Fargo Bank, N.A., the administrative
agent under the Credit Agreement, and its successors and assigns.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person that
owns, directly or indirectly, 10% or more of such Person's equity ownership or
Voting Stock or any officer or director of any such Person or other Person or
with respect to any natural Person, any person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person
directly or indirectly, whether through ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depository for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Asset Purchase Agreement" shall mean the Asset Purchase Agreement
dated as of January 6, 1999 by and among the Company and Mondial as the same may
be amended, supplemented or otherwise modified from time to time.
"Bankruptcy Law" means Title 11 of the United States Code, as amended,
or any similar United States federal or State law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of such board.
2
"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.
"Book-Entry Security" means any Securities bearing the legend specified
in EXHIBIT E evidencing all or a part of a series of Securities, authenticated
and delivered to the Depository for such series or its nominee, and registered
in the name of such Depository or nominee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means any obligations of such
Person and its subsidiaries on a Consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Cash Equivalents" means: (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) certificates of deposit or acceptances with a
maturity of 180 days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500,000,000; (iii) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
organized under the laws of any state of the United States or the District of
Columbia and rated A-1 (or higher) according to S&P or P-1 (or higher) according
to Moody's or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; and (v) repurchase agreements and reverse repurchase
agreements with a commercial bank or a member firm of the NYSE relating to
marketable direct obligations issued or unconditionally guaranteed by the
government of the United States of America or issued by any agency thereof and
backed by the full faith and credit of the United States of America, in each
case maturing within 180 days from the date of acquisition.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as
3
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have beneficial ownership of all shares that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 50% of the
Voting Stock of all classes of Voting Stock of the Company; (ii) the Company
consolidates with or merges with or into any Person or conveys, transfers or
leases all or substantially all of its assets to any Person, or any corporation
consolidates with or merges with or into the Company, in any such event pursuant
to a transaction in which the outstanding Voting Stock of the Company is changed
into or exchanged for cash, securities or other property, other than any such
transaction (1) where the outstanding Voting Stock of the Company is not changed
or exchanged at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company) or (2) where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of
the surviving corporation or the Company which is not Redeemable Capital Stock
or (y) cash, securities and other property (other than Capital Stock of the
surviving corporation) in an amount the payment of which would not violate the
terms of any agreement to which the Company is a party and (B) no "person" or
"group" other than Permitted Holders owns immediately after such transaction,
directly or indirectly, more than 50% of the total outstanding Voting Stock of
the surviving corporation, or (iii) the Company is liquidated or dissolved or
adopts a plan of liquidation or dissolution, other than in a transaction which
complies with the provisions of Article Seven.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 Indenture 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" means the common stock, par value $.01 per share, of the
Company.
"Company" means Playtex Products, Inc., a corporation incorporated
under the laws of Delaware. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310 through 317
as they are applicable to the Company, the term "Company" shall include any
other obligor with respect to the Securities for purposes of complying with such
provisions, or any successor thereto succeeding pursuant to Article Seven
hereof.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice-Chairman, its President or a Vice President (regardless of Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
4
"Consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article Thirteen.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Agreement" means the Credit Agreement dated as of July 21,
1997, by and among the Company, as the Borrower, DLJ Capital Funding, Inc., as
the Syndication Agent, and Xxxxx Fargo Bank, N.A., as the Administrative Agent,
as such agreement may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Credit Facilities" means (a) the Credit Agreement and (b) the Term
Loan Agreement.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the last reported sale price
regular way or, in case no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case as reported on the New
York Stock Exchange, Inc. (the "NYSE") or, if the Common Stock is not then
traded on the NYSE, on the principal national securities exchange on which the
Common Stock is listed or admitted for trading or (b) if the Common Stock is not
listed or admitted for trading on any national securities exchange, on the basis
of the last reported sale price or, in case no such sale takes place on such
day, the average of the highest reported bid and the lowest reported asked
quotation for the Common Stock, in either case as reported on the automatic
quotation system of the Nasdaq Stock Market or a similar service if Nasdaq is no
longer reporting such information or (c) if the Common Stock is not so listed or
traded as contemplated by clause (a) and quotations for the Common Stock are not
available as contemplated by clause (b), on such basis as the Board of Directors
shall establish in good faith.
"Default" means any condition or event that constitutes an Event of
Default or that, with notice or lapse of time or both, would (unless cured or
waived) become an Event of Default.
5
"Depository" means The Depository Trust Company, its nominees and
successors.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Facilities and (ii) any other Senior Indebtedness which, at the
time of determination, has an aggregate principal amount outstanding, together
with any commitments to lend additional amount, of at least $50,000,000 and is
specifically designated by the Company, with the consent of (x) the
Administrative Agent if the Credit Agreement is then in effect and (y) the
Facility Manager if the Term Loan Agreement is then in effect, in the instrument
evidencing such Senior Indebtedness or the agreement under which such Senior
Indebtedness arises as "Designated Senior Indebtedness."
"Event of Default" has the meaning specified in Article Four.
"Excess Payment" means the portion of the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and
described in a Board Resolution) of other consideration payable in respect of
any tender offer or other negotiated transaction by the Company or a Subsidiary
for all or any portion of the Company's Common Stock that is in excess of an
amount equal to the product of (x) the number of shares of Common Stock with
respect to which the aggregate tender offer or negotiated purchase consideration
is payable times (y) the Reference Price.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Facility Manager" means Xxxxx Fargo Bank, N.A., the facility manager
under the Term Loan Agreement, and its successors and assigns.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Indenture.
"Global Security" means, as the context may require, any or all of the
Restricted Global Security and the Unrestricted Global Security.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (i) to pay
or purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to take payment of such Indebtedness or to assure the holder
of such Indebtedness against loss, (iii) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for property or
services without requiring that such
6
property be received or such services be rendered), (iv) to maintain working
capital or equity capital of the debtor, or otherwise to maintain the net worth,
solvency or other financial condition of the debtor or (v) otherwise to assure a
creditor against loss; provided that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business.
"Hazelbank" means Hazelbank, Inc., a Wisconsin corporation.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities and in connection
with any agreement to purchase, redeem, exchange, convert or otherwise acquire
for value any Capital Stock of such Person, or any warrants, rights or options
to acquire such Capital Stock, now or hereafter outstanding, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements of such Person,
(v) all Capital Lease Obligations of such Person, (vi) all Indebtedness referred
to in clauses (i) through (v) above of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vii) all
Guaranteed Debt of such Person, (viii) all Redeemable Capital Stock valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any Indebtedness of
the types referred to in clauses (i) through (viii) above. For purposes hereof,
the "maximum fixed repurchase price" of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Redeemable Capital Stock, such fair market value to be
determined in good faith by the Board of Directors of such Person.
7
"Indenture" means this instrument as originally executed (including all
exhibits and schedules thereto) and 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.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as the term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the Stated Maturity of a regular
installment of interest on the Securities or the Special Payment Date with
respect to Defaulted Interest.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Issue Date" means January 29, 1999.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in this Indenture, whether at Stated Maturity or the Redemption
Date and whether by declaration of acceleration, call for redemption or
otherwise.
"Mondial" means Mondial Industries Limited Partnership, a Wisconsin
limited partnership.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor rating
agency.
"Non-Payment Default" means any event (other than a Payment Default)
the occurrence of which entitles one or more Persons to accelerate at such time
the maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a Person who is not a U.S. person, as defined
in Regulation S.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, President or a Vice President (regardless of Vice
Presidential designation), and by the Treasurer, Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
8
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Trustee, and who shall be reasonably acceptable
to the Trustee, including but not limited to an Opinion of Independent Counsel.
"Opinion of Independent Counsel" means a written opinion by someone who
is not an employee or consultant of the Company and who shall be reasonably
acceptable to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, 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 Securities; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided in Sections 302 and 303,
with respect to which the Company has effected defeasance or covenant defeasance
as provided in Article Three; and
(d) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee and the Company proof reasonably satisfactory to each of them that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company; provided, however, that in determining whether
the Holders of the requisite principal amount of Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
9
"Paying Agent" means any Person authorized by the Company to pay the
principal, premium, if any, or interest on any Securities on behalf of the
Company.
"Payment Default" means any default in the payment of principal,
premium, if any, interest, commitment fees, letter of credit fees, reimbursement
obligations in respect of amounts owing under letters of credit or payments in
respect of interest under Interest Rate Agreements, in each case, on any
Designated Senior Indebtedness.
"Permitted Holders" means each of (i) HWH Capital Partners, L.P., HWH
Valentine Partners, L.P., HWH Surplus Valentine Partners, L.P. (each a
"Partnership") or Xxxx Wheat & Partners Incorporated and any of their respective
Affiliates; (ii) any officer or other member of management employed by the
Company or any Subsidiary as of the date of the Indenture; (iii) Xxxxxx X. Xxxx
and Xxxxxxx X. Xxxxx; (iv) family members or relatives of the persons described
in clauses (ii) and (iii); (v) any trusts created for the benefit of the persons
described in clause (ii), (iii) or (iv); (vi) in the event of the incompetence
or death of any of the persons described in clauses (ii), (iii) and (iv), such
person's estate, executor, administrator, committee or other personal
representatives or beneficiaries; and (vii) upon a distribution by a Partnership
of all or any of the stock of the Company, the limited partners of such
Partnership.
"Permitted Junior Securities" means, so long as the effect of any
exclusion employing this definition is not to cause the Securities to be treated
in any case or proceeding or similar event described in clauses (a), (b) or (c)
of the first paragraph of Section 1202 as part of the same class of claims as
the Senior Indebtedness or any class of claims pari passu with, or senior to,
the Senior Indebtedness, for any payment or distribution, debt or equity
securities of the Company or any successor Person provided for by a plan of
reorganization or readjustment that are subordinated at least to the same extent
that the Securities are subordinated to the payment of all Senior Indebtedness
then outstanding; provided that (1) if a new Person results from such
reorganization or readjustment, such Person assumes any Senior Indebtedness not
paid in full in cash or Cash Equivalents in connection with such reorganization
or readjustment and (2) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 205 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
10
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A under the Securities Act.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, is, or upon the happening of an event or passage of time would be,
required to be redeemed prior to any Stated Maturity of the principal of the
Securities or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to any such Stated Maturity at the option of
the holder thereof.
"Redemption Date" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed pursuant to a provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture.
"Reference Price" means, with respect to any tender offer or other
negotiated transaction by the Company or a Subsidiary for all or any portion of
the Company's Common Stock, the average of the Daily Market Prices per share of
Common Stock on the five consecutive trading days selected by the Company out of
the 10 consecutive trading days next succeeding the date of payment of such
negotiated transaction consideration or expiration of such tender offer, as the
case may be.
"Registration Rights Agreement" means the Registration Rights Agreement
dated the Issue Date between the Company and Mondial.
"Regular Record Date" for the interest payable on any Interest Payment
Date means January 15 or July 15, as the case may be (whether or not a Business
Day), next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture or any other officer of
the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Global Security" means a Security substantially in the form
of EXHIBIT A that includes the legends set forth in EXHIBIT A and EXHIBIT E.
11
"Restricted Security" has the meaning set forth in Rule 144(a)(3) under
the Securities Act; provided that the Trustee shall be entitled to request and
conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Securities" has the meaning specified in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on any Indebtedness of the Company (other than as otherwise provided in
this definition), whether outstanding on the date hereof or thereafter created,
incurred or assumed, and whether at any time owing, actually or contingent,
unless in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall include the principal of, premium, if any, and interest
(including interest accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy laws whether or not
allowable as a claim in such proceedings) on all obligations of every nature of
the Company from time to time owed to the lenders under (i) the Credit Agreement
and (ii) the Term Loan Agreement; provided, however, that any Indebtedness under
any refinancing, refunding, or replacement of the Credit Agreement or the Term
Loan Agreement shall not constitute Senior Indebtedness to the extent that the
Indebtedness thereunder is expressly subordinate to any other Indebtedness of
the Company. Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (i) Indebtedness evidenced by the Securities, (ii) Indebtedness
(including but not limited to the Senior Subordinated Notes) that is subordinate
or junior in right of payment to any Indebtedness of the Company, (iii)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to the
Company, (iv) Indebtedness which is represented by Redeemable Capital Stock, (v)
any liability for foreign, federal, state, local or other taxes owed or owing by
the Company, (vi) Indebtedness of the Company to a Subsidiary or any other
Affiliate of the Company or any of such Affiliate's subsidiaries, (vii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture and (viii) the Company's 15 1/2% Junior Subordinated Notes due
2003.
"Senior Notes" means the Company's 87/8% Senior Notes due 2004.
12
"Senior Subordinated Notes" means the Company's 9% Senior Subordinated
Notes due 2003.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 206.
"S&P" means Standard & Poor's Ratings Services, or any successor rating
agency.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities.
"Subsidiary" means any Person a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Term Loan Agreement" means the Term Loan Agreement dated as of July
21, 1997, by and among the Company, as the Borrower, the several banks and other
financial institutions from time to time parties thereto, DLJ Capital Funding,
Inc., as the Syndication Agent, and Xxxxx Fargo Bank, N.A., as the Facility
Manager, as such agreement may be amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified from time
to time (including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Unrestricted Global Security" means a Global Security substantially in
the form of EXHIBIT A that includes the legends set forth in EXHIBIT E but does
not include any of the legends set forth in EXHIBIT A.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
a corporation (irrespective of
13
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
Section 102. Other Definitions.
Defined
Term in Section
---- ----------
"Act" 105
"Agent Members" 210
"Change of Control Offer" 908
"Change of Control Purchase Date" 908
"Change of Control Purchase Price" 908
"Conversion Date" 1302
"Conversion Price" 1301
"Conversion Shares" 1304
"covenant defeasance" 303
"Defaulted Interest" 206
"defeasance" 302
"Defeasance Redemption Date" 304
"Defeased Securities" 301
"Distribution Date" 1304
"Distribution Record Date" 1304
"Payment Blockage Period" 1203
"Physical Securities" 201
"Private Placement Legend" 211
"Purchase Date" 1304
"Rights" 1304
"Security Register" 204
"Security Registrar" 204
"Senior Representative" 1203
"Special Payment Date" 206
"Specified Date" 1302
"Supplemental Indenture" 701
"Surviving Entity" 701
"U.S. Government Obligations" 304
14
Section 103. 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 an Officers' Certificate to the effect that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance which constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel to the effect that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of any certificates and/or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement to the effect that each individual or firm 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 to the effect that, in the opinion of each such
individual or such firm, he has made such examination or investigation as is
necessary to enable him or them 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
or such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or other
obligor of the Securities 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
15
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 certificate or opinion of such an officer or 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 with respect to
such factual matters and which contains a statement to the effect that the
information with respect to such factual matters is in the possession of the
Company, unless such officer or counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
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 105. Acts of Holders.
(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 conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent, Conversion Agent or the Company in reliance thereon, whether or
not notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him
16
the execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate of 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 deems sufficient.
Section 106. 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 or any other obligor of
the Securities shall be sufficient for every purpose hereunder if made, given,
furnished or filed, in writing, by first-class mail postage prepaid (return
receipt requested) or delivered in person or by recognized overnight courier to
or with the Trustee at 000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department or at any other address furnished in
writing prior thereto to the Holders, the Company or any other obligor of the
Securities by the Trustee; or
(b) the Company shall be sufficient for every purpose (except as
provided in Section 401(c)) hereunder if in writing and mailed, first-class
postage prepaid or delivered by recognized overnight courier, to the Company
addressed to it at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Chief Financial Officer, or at any other address previously furnished in writing
to the Trustee by the Company, with a copy, in the case of any notice under
Section 402, to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxx, Esq.
Section 107. 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, and not earlier than the earliest date,
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 of 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.
17
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act 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, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
other obligor of the Securities shall bind their successors and assigns, whether
so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
18
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal or premium, if any, need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at Maturity or the Stated
Maturity, and no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date, Maturity or
Stated Maturity, as the case may be, to the next succeeding Business Day.
Section 115. Schedules.
All schedules attached hereto are by this reference made a part with
the same effect as if herein set forth in full.
Section 116. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 117. No Set-Off.
Notwithstanding anything to the contrary contained herein, the Company
hereby waives the right to set-off against the unpaid principal of, premium, if
any, and interest on the Securities any payments or other amounts (including
indemnity payments) which the Company becomes entitled to receive from the
Holders under the Asset Purchase Agreement or otherwise.
Section 118. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
19
"obligor" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
ARTICLE TWO
THE SECURITIES
Section 201. Form and Dating.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements approved as to form by the Company and
required by law, stock exchange rule, agreements to which the Company is subject
or usage. Each Security shall be dated the date of its authentication. The
Securities initially shall be issuable only in denominations of $1,000 and
integral multiples thereof and thereafter may be issued in any denominations.
Subject to the following paragraph, Securities shall be issued
initially under this Indenture in the form of one or more permanent certificated
Securities in registered form, in substantially the form set forth in EXHIBIT A
(the "Physical Securities"), with appropriate legends. Beneficial owners of
Physical Securities may request registration of such Physical Securities in
their names or the names of their nominees.
So long as the Securities are eligible for book-entry settlement with
the Depository, or unless otherwise required by law, all Securities that are so
eligible may be represented at the request of the Holders thereof by one or more
Global Securities in registered form, registered in the name of the Depository
or its nominee and deposited with the Trustee, as custodian for the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided, for credit by the Depository to the respective accounts of beneficial
owners of the Securities represented thereby (or such other accounts as they may
direct). The aggregate principal amount of the Restricted Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depository, as hereinafter provided.
If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities.
20
The principal of and interest on Book-Entry Securities shall be payable
to the Depository or its nominee, as the case may be, as the sole registered
owner and the sole holder of the Book-Entry Securities represented thereby. The
principal of and interest on Securities in certificated form shall be payable at
the office of the Paying Agent.
Section 202. Execution and Authentication.
The Securities shall be executed on behalf of the Company by one of its
Chairman of the Board, Vice-Chairman, President or one of its Vice Presidents.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities 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 Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Officer's Certificate and
Opinion(s) of Counsel required by Section 103, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. The form of Trustee's
certificate of authentication to be borne by the Securities shall be
substantially as set forth in EXHIBIT A hereto.
In case the Company, pursuant to Article Seven, shall be consolidated
or merged with or into any other Person or shall sell, convey, assign, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged or
consolidated, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Seven, any of
the Physical Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Physical
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of
21
like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of a Holder but without
expense to such Holder, shall provide for the exchange of all Securities at the
time Outstanding held by such Holder for Securities authenticated and delivered
in such new name.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities on behalf of the Trustee. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Security Registrar or
Paying Agent to deal with the Company and its Affiliates.
Section 203. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 902,
without charge to the Holders thereof. Upon surrender for cancellation of any
one or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 204. Registrar, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee, or such other office as the Trustee may designate, a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 902 being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as the Security
Registrar may prescribe, the Company shall provide for the
22
registration of Securities and of transfers of Securities. The Trustee or an
agent thereof or of the Company shall initially be the "Security Registrar" for
the purpose of registering Securities and transfers of Securities as herein
provided. The Company may appoint one or more co-registrars.
Subject to this Section 204 and Sections 210 and 211 hereof, upon
surrender for registration of transfer of any Physical Security at the office or
agency of the Company designated pursuant to Section 902, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Physical Securities of any
authorized denomination or denominations, of a like aggregate principal amount.
Notwithstanding anything in this Indenture to the contrary, prior to
January 30, 2000, no Security may be transferred, in whole or in part, to any
Person for any purpose, except by operation of law (including the laws of
descent of any jurisdiction) and except that Mondial may transfer a Security, or
a portion thereof, to any of its general or limited partners and Hazelbank may
transfer a Security, or a portion thereof, to any of its shareholders. For
purposes hereof, the Trustee shall be entitled to conclusively rely on the list
delivered to it pursuant to Section 601(c), as the same may be amended or
supplemented from time to time on written notice to it by the Company, in
determining whether a proposed transferee is a general or limited partner of
Mondial or a shareholder of Hazelbank.
At the option of the Holder, Physical Securities may be exchanged for
other Physical Securities of any authorized denomination or denominations, of a
like aggregate principal amount, upon surrender of the Physical Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
for exchange or redemption, or conversion into Common Stock, 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 such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of,
transfer, exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed in connection
with any registration of, transfer,
23
exchange or redemption of Securities, other than exchanges pursuant to Section
202, 203, 205, 806, 908, 1008 or 1302 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
(i) 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 1004 and ending at the close of business
on the day of such mailing or (ii) 15 days before an Interest Payment Date and
ending on the close of business on the Interest Payment Date,(b) to register the
transfer of or exchange (i) any Security so selected for redemption in whole or
in part, except the unredeemed portion of Securities being redeemed in part, or
(ii) any Securities or portion thereof surrendered for conversion pursuant to
Article Thirteen.
Section 205. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security and/or indemnity, in each case as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and any other obligor of the Securities,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
24
Section 206. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name that Security is registered at the close of business on the
Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not paid or duly
provided for on the Stated Maturity of such interest (or within 15 days after
the Stated Maturity of such interest) and interest on such defaulted interest at
the then applicable interest rate borne by the Securities, to the extent lawful
(such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") shall forthwith cease to be payable to the Holder in whose
name such Security is registered as of the Regular Record Date; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment (the "Special Payment Date"), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the Special Payment Date, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Subsection provided. Such notice
shall be received by the Trustee no less than 30 days prior to the
Special Payment Date. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which Special Record
Date shall be not more than 15 days and not less than 10 days prior to
the Special Payment Date 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 in writing of such Special Record Date and
Special Payment Date. In the name and at the expense of the Company,
the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Payment Date
therefor to be mailed, certified or registered (return receipt
requested) 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 Securities are
25
registered on such Special Record Date and shall no longer be payable
pursuant to the following subsection (b).
(b) The Company may make payment to the Persons in whose name
the Securities are registered at the close of business on the Special
Record Date and Special Payment Date of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, unless, after written
notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection, such manner of payment shall not be deemed
practicable by the Trustee (acting reasonably). The Trustee shall give
prompt written notice to the Company of any such determination.
Subject to the foregoing provisions of this Section 206, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior such Interest Payment Date), interest on
such Security 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 Security (or one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable (although such accrued
and unpaid interest will be deemed paid by the appropriate portion of the Common
Stock received by the holders upon such conversion).
Section 207. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 206) interest on such Security, for the purpose of
conversion and for all other purposes whatsoever, whether or not such Security
is overdue, and none of the Company, the Trustee or any agent of the Company or
the Trustee shall be affected by notice to the contrary.
26
Section 208. Cancellation.
All Securities surrendered for payment, purchase, conversion,
redemption, registration of transfer or exchange shall be delivered to the
Trustee and, if not already canceled, shall be promptly canceled by it. The
Company or any Subsidiary may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or any such Subsidiary may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. The Company may not issue new Securities to replace Securities that it
has paid or that have been delivered to the Trustee for cancellation or that any
Holder has converted pursuant to Article Thirteen. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be destroyed in accordance with its
customary procedures and certification of their destruction delivered to the
Company unless by a Company Order received by the Trustee prior to such
destruction the Company shall direct that the canceled Securities be returned to
it. The Trustee shall provide the Company a list of all Securities that have
been canceled from time to time as requested by the Company.
Section 209. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 210. Book-entry Provisions for Global Security.
(a) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers, in
whole or in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
or exchanged for Physical Securities upon request of a Holder but only upon at
least 20 days' prior written notice given to the Trustee by or on behalf of the
Depository in accordance with the rules and procedures of the Depository and the
provisions of Section 211. In addition, Physical Securities shall be transferred
to all beneficial owners in exchange for their beneficial interests in a Global
27
Security if (i) the Depository (x) notifies in writing the Company that it is
unwilling or unable to continue as Depository for such Global Security and a
successor depository is not appointed by the Company within 90 days of such
notice or (y) has ceased to be a clearing agency registered under the Exchange
Act, (ii) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Physical Securities or (iii) an Event of Default
has occurred and is continuing and the Security Registrar has received a written
request from the Depository to issue Physical Securities.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depository or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Two. If any Security is to be exchanged for other
Securities or canceled in part, or if a Physical Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, such Global
Security shall be so surrendered for exchange or cancellation as provided in
this Article Two or, if the Trustee is acting as custodian for the Depository or
its nominee (or is party to a similar arrangement) with respect to such Global
Security, the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or canceled, or the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, in each case by means of an appropriate
adjustment made on the records of the Trustee, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depository or its
authorized representatives to make a corresponding adjustment to its records
(including by crediting or debiting any Agent Member's account as necessary to
reflect any transfer or exchange of a beneficial interest). Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to this
Article Two, authenticate and deliver any Securities issuable in exchange for
such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depository or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph or in
paragraph (b) above, the Company shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global Securities.
The Trustee shall be entitled to rely upon any order, direction or request of
the Depository or its authorized representative which is given or made pursuant
to this Article Two if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.
(e) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in a Global Security pursuant to paragraph (d)
shall, except as
28
otherwise provided by paragraphs (a)(i)(x) and (e) of Section 211, bear the
legend regarding transfer restrictions applicable to the Physical Securities set
forth in EXHIBIT A.
(f) If a Security is a Restricted Security and a Physical Security,
then as provided in this Indenture and subject to the limitations herein set
forth, the Holder, provided it is a Qualified Institutional Buyer or an
Institutional Accredited Investor, may exchange such Security for a Book-Entry
Security by instructing the Trustee (by completing the Transferee Certificate in
the form of EXHIBIT C hereto) to arrange for such Security to be represented by
a beneficial interest in the appropriate Restricted Global Security in
accordance with the customary procedures of the Depository.
(g) The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action such Holder is entitled to
take under this Indenture or the Securities.
Section 211. Special Transfer Provisions.
(a) Transfers of Physical Securities and Certain Restricted Global
Securities to Non-QIB Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Physical Security constituting a Restricted Security and certain Restricted
Global Securities to any Institutional Accredited Investor which is not a QIB:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Restricted
Security bears the private placement legend substantially in the form of the
first paragraph of EXHIBIT A hereto (the "Private Placement Legend"), if (x) the
requested transfer is after the first anniversary of the Issue Date and, to the
knowledge of the Trustee, the transferor is not an Affiliate of the Company or
(y) the proposed transferee has delivered to the Security Registrar a
certificate substantially in the form of EXHIBIT D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Restricted Global Security representing Securities
held by QIBs, upon receipt by the Security Registrar of (x) the certificate, if
any, required by paragraph (i) above and (y) instructions given in accordance
with the Depository's and the Security Registrar's procedures, (a) the Registrar
shall reflect on its books and records the date and (if the transfer does not
involve a transfer of outstanding Physical Securities) a decrease in the
principal amount of such Restricted Global Security in an amount equal to the
principal amount of the beneficial interest in such Restricted Global Security
to be transferred, and (b) (x) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount or (y) the Security Registrar shall reflect on its books and records the
date and an increase in the principal amount of the Restricted Global
29
Security representing Securities held by Institutional Accredited Investors in
an amount equal to the principal amount of such Restricted Global Security to be
so transferred.
(b) Transfers of Physical Securities and Certain Restricted Global
Securities to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Physical Security constituting a
Restricted Security and certain Restricted Global Securities to a QIB:
(i) the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has advised the Company and
the Security Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that it is purchasing
the Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A, and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of (a) Physical Securities which after
transfer are to be evidenced by a beneficial interest in the Restricted Global
Security representing Securities held by QIBs, or (b) an interest in the
Restricted Global Security representing Securities held by Institutional
Accredited Investors, upon receipt by the Security Registrar of instructions
given in accordance with the Depository's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and records the
date and an increase in the principal amount of such Restricted Global Security
in an amount equal (x) the principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so transferred
or (y) the amount of the interest in the Restricted Global Security representing
Securities held by Institutional Accredited Investors to be so transferred (in
which case the Security Registrar shall reflect on its books and records the
date and an appropriate decrease in the principal amount of such Restricted
Global Security).
(c) Transfer of Physical Securities to Non-U.S. Persons
The following provisions shall apply with respect to the registration
of any proposed transfer of a Physical Security constituting a Restricted
Security to any Non-U.S. Person:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Restricted
Security bears the Private Placement Legend, if (x) the requested transfer is
after the first anniversary of the Issue Date
30
and, to the knowledge of the Trustee, the transferor is not an Affiliate of the
Company or (y) each of the proposed transferee and transferor has delivered to
the Security Registrar a written certification that such transfer is being made
in compliance with Regulation S (or other evidence satisfactory to the Trustee);
and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Security, upon receipt by the
Security Registrar of (x) the certificate, if any, required by (i) above and (y)
instructions given in accordance with the Depository's and the Security
Registrar's procedures, (a) the Security Registrar shall reflect on its books
and records the date and (if the transfer does not involve a transfer of
outstanding Physical Securities) a decrease in the principal amount of such
Restricted Global Security in an amount equal to the principal amount of the
beneficial interest in such Restricted Global Security to be so transferred, and
(b) the Company shall execute and the Trustee shall authenticate and deliver one
or more Physical Securities of like tenor and amount.
(d) Certain Transfers and Exchanges.
(i) Non-Global Restricted Security to Global Security. If the
Holder of a Restricted Security (other than a Global Security) wishes at any
time to transfer all or any portion of such Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Restricted
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this clause (i). Upon receipt by the
Trustee, as Security Registrar, of (A) such Security and written instructions
given by or on behalf of such Holder as provided in Section 210 directing the
Trustee to credit or cause to be credited to a specified Agent Member's account
a beneficial interest in the Restricted Global Security, in a specified
principal amount equal to the principal amount of the Restricted Security (or
portion thereof) to be so transferred, and (B) an appropriately completed
certificate substantially in the form set forth on EXHIBIT C hereto, if the
specified amount is to be credited with a beneficial interest in the Restricted
Global Security, signed by or on behalf of such Holder, then the Trustee, as
Security Registrar, shall cancel such Restricted Security (and issue a new
Security in respect of any untransferred portion thereof as provided in Section
210) and increase the principal amount of the Restricted Global Security by the
specified principal amount.
(ii) Other Exchange. Securities that are not Global Securities
may be exchanged (on registration of transfer or otherwise) for Securities that
are not Global Securities or for beneficial interests in a Global Security (if
any is then outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clause (i) above (including the
certification requirements intended to insure that transfers or beneficial
interests in a Global Security comply with Rule 144A, Regulation S, or another
exemption from the Securities Act) and any Applicable Procedures, as may be from
time to time adopted by the Company and the Trustee.
31
(e) Restrictive Legends. Upon the registration of transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the Security
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend or other applicable legend, the Security
Registrar shall deliver only Securities that bear the Private Placement Legend
or such other legend unless (i) the circumstance contemplated by paragraph
(a)(i)(x) of this Section 211 exists or (ii) there is delivered to the Security
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither the legends sought to be removed nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of this Indenture or the Securities Act.
(f) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 210 or this Section
211 in accordance with its customary procedures. The Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
Section 212. Conversion Notices.
Conversion notices shall be substantially in the form of EXHIBIT B
hereto.
ARTICLE THREE
DEFEASANCE AND COVENANT DEFEASANCE
Section 301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 302 or Section 303 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Three.
Section 302. Defeasance and Discharge.
Upon the Company's exercise under Section 301 of the option applicable
to this Section 302, each of the Company and any other obligor on the Securities
shall be
32
deemed to have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company and any other obligor of the Securities shall be deemed to have paid and
discharged the entire indebtedness represented by the Defeased Securities, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
305 and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company and upon written request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 304 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on such Securities when such
payments are due, (b) the Company's obligations with respect to such Defeased
Securities under Sections 203, 204, 205, 902 and 903, (c) the rights, powers,
trusts, duties, indemnities and immunities of the Trustee hereunder, and (d)
this Article Three. Subject to compliance with this Article Three, the Company
may exercise its option under this Section 302 notwithstanding the prior
exercise of its option under Section 303 with respect to the Securities.
Section 303. Covenant Defeasance.
Upon the Company's exercise under Section 301 of the option applicable
to this Section 303, each of the Company and any other obligor on the Securities
shall be released from its obligations under any covenant or provision contained
in Sections 905 through 908, inclusive, with respect to the Defeased Securities
on and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Securities shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants and provisions, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Defeased Securities, the Company and
any other obligor of the Securities may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein or in such Defeased Securities to any such Section or Article
or by reason of any reference in any such Section or Article to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default, under Section 401(c), (d) or (g)
but, except as specified above, the remainder of this Indenture and such
Defeased Securities shall be unaffected thereby.
Section 304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
302 or Section 303 to the Defeased Securities:
33
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, in such amounts as will be sufficient, as
reflected in the written report of a nationally recognized firm of independent
public accountants or a nationally recognized investment banking firm delivered
to the Trustee, to pay and discharge (and which shall be applied by the Trustee
to pay and discharge) the principal of, premium, if any, and interest on, the
Defeased Securities on the Stated Maturity (or on any date after January 29,
2002 (such date being referred to as the "Defeasance Redemption Date"), if prior
to electing either defeasance or covenant defeasance, the Company has delivered
to the Trustee an irrevocable notice to redeem all of the outstanding Securities
on the Defeasance Redemption Date) of such principal or installment of interest;
provided that the Trustee (or such qualifying trustee) shall have been
irrevocably instructed to apply such United States dollars or the proceeds of
such U.S. Government Obligations to said payments with respect to the
Securities. For this purpose, "U.S. Government Obligations" means securities
that are (i) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(2) In the case of an election under Section 302, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
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(3) In the case of an election under Section 303, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 401(e) and (f)
are concerned, at any time during the period ending on the 91st day after the
date of deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a Default under, this Indenture or a breach or
violation of any provision of any agreement to which the Company is a party or
by which it is bound.
(7) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Securities over the other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(9) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
Securities on the date of such deposit or at any time ending on the 91st day
after the date of such deposit.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each to the effect that all
conditions precedent provided for relating to either the defeasance under
Section 302 or the covenant defeasance under Section 303 (as the case may be)
have been complied with as contemplated by this Section 304.
Opinions of Counsel required to be delivered under this Section may
have qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required, which
certificates shall be limited to matters of fact, including that various
financial covenants have been complied with.
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Section 305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 903, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 304 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 304 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Defeased Securities.
Anything in this Article Three to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 304 which, in the opinion of a nationally recognized firm of
independent public accountants or nationally recognized investment banking firm
expressed in a written report delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect defeasance
or covenant defeasance. In the event of an error in any calculation resulting in
a withdrawal hereunder, the Company shall deposit an amount equal to the amount
erroneously withdrawn as promptly as practicable after becoming aware of such
error.
Section 306. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 302 or 303, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 302
or 303, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such United States dollars or U.S. Government Obligations
in accordance with Section 302 or 303, as the case may be; provided, however,
that (a) if the Company makes any payment to the Trustee or Paying Agent of
principal, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee or Paying Agent shall promptly pay
any such amount to the Holders of the Securities and the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the United States dollars and U.S. Government Obligations held by
the Trustee or Paying Agent and (b) the Trustee or Paying Agent shall
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return all such United States dollars and U.S. Government Obligations to the
Company promptly after receiving a Company Request therefor at any time, if the
Trustee or Paying Agent receives written notice from the Company that such
reinstatement of the Company's obligations has occurred and continues to be in
effect at such time.
ARTICLE FOUR
REMEDIES
Section 401. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on any
Security when it becomes due and payable, and such default shall continue for a
period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security when and as the same shall become due and
payable at its Maturity (upon acceleration, optional redemption or otherwise);
(c) (i) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company under this Indenture (other than a default
in the performance, or breach, of a covenant or agreement which is specifically
dealt with in Section 401(a) or (b) or in clauses (ii) or (iii) of this Section
401(c)) and such default or breach shall continue for a period of 30 days after
written notice has been given, by certified mail, (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities; (ii) there shall be a
default in the performance or breach of the provisions of Article Seven; or
(iii) the Company shall have failed to make or consummate a Change of Control
Offer in accordance with the provisions of Section 908;
(d) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company or any Subsidiary then has
outstanding Indebtedness in excess of $25,000,000 in the aggregate and, if not
already matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated;
(e) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law or (ii) a
decree or order adjudging the Company bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or
37
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 similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its affairs, and any
such decree or order for relief shall continue to be in effect, or any such
other decree or order shall be unstayed and in effect, for a period of 60
consecutive days;
(f) (i) the Company commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (ii) the Company consents to the entry of a decree or
order, for relief in respect of the Company in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (iii) the Company files a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, (iv) the Company (x) consents to the filing of such petition or
the appointment of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, (y) makes an assignment for the benefit of
creditors or (z) admits in writing its inability to pay its debts generally as
they become due or (v) the Company takes any corporate action in furtherance of
any such actions in this paragraph (f); or
(g) one or more final judgments, orders or decrees for the payment of
money in excess of $15,000,000, either individually or in the aggregate, shall
be entered against the Company or any Subsidiary or any of their respective
properties and shall not be discharged and either (i) enforcement proceedings
shall have been commenced upon such judgment, order or decree or (ii) there
shall have been a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of an appeal or otherwise,
shall not be in effect.
Section 402. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 401(e) or (f) with respect to the Company) occurs and is continuing,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities may, and the Trustee upon the request of the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
shall, declare all the Securities to be due and payable immediately in an amount
equal to the principal amount of the Securities, together with accrued and
unpaid interest, if any, to the date the Securities shall have become due and
payable, by a notice in writing to the Company (and to the Trustee, if given by
Holders), and upon any such declaration such amount shall become immediately due
and payable. If an Event of Default specified in Sections 401(e) or (f) occurs
with respect to the Company and is continuing, then all the Securities shall
ipso facto become and be immediately due and payable, in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest,
if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder.
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At any time after such declaration of acceleration has been made and
before judgment or decree for payment of the money due has been obtained by the
Trustee as provided hereinafter in this Article, the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities, by written
notice of 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 sums paid or advanced by the Trustee and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 507,
(ii) all overdue interest on the Securities,
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities,
and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
(b) all Events of Default, other than the non-payment of principal of
the Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 413.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 403. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and which default continues for a period
of 30 days, or
(b) default is made in the payment of the principal, premium, if any,
on any Security at the Stated Maturity (upon acceleration, optional or mandatory
redemption, required repurchase or otherwise) thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, with interest upon the overdue
principal and premium, if any, and, to the extent that payment of such interest
39
shall be legally enforceable, upon overdue installments of interest, at the rate
borne by the Securities.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
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 under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce 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 therein, or
to enforce any other proper remedy or to enforce any other proper remedy,
subject however to Section 412.
The rights and remedies under this Section 403 are in addition to the
other rights and remedies under this Article Four.
Section 404. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Company or any other obligor upon
the Securities, or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company or the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities and
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
40
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements add advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 507.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, composition or other similar
arrangement affecting the Securities 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 405. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and 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 and any other
amounts due the Trustee under Section 507, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 406. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, 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,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender hereof
if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 507;
SECOND: Subject to Article Twelve, to the payment in full of the
amounts then due and unpaid upon the Securities for principal, premium, if any,
and interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind according to
the amounts due and payable in such Securities for principal, premium, if any,
and interest; and
41
THIRD: Subject to Article Twelve, the balance, if any, to the Person or
Persons entitled thereto as a court of competent jurisdiction shall direct, or
to the Company, provided that all sums due and owing to the Holders and the
Trustee have been paid in full as required by this Indenture.
Section 407. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, 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 principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered, and if requested have
provided, to the Trustee an indemnity satisfactory to the Trustee in its sole
discretion 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 (and if requested, provision) of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
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 provided in
this Indenture and for the equal and ratable benefit to all the Holders.
Section 408. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, but subject to
Article Twelve, the Holder of any Security shall have the right on the terms
stated herein, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, and (subject to Section 206) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date), to
42
convert the Securities in accordance with Article Thirteen and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 409. Restoration of Rights and Remedies.
If the Trustee or any Holders 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, (a) the Company and any other obligor under
the Securities, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder, and (b) thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 410. Rights and Remedies Cumulative.
Except as provided in Section 205, 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 411. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 412. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities 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 (including, without limitation, Section 407) or expose the
Trustee to personal liability; and
43
(b) subject to the provisions of Section 315 of the Trust Indenture
Act, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 413. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past Default hereunder and its consequences, except a Default
(a) in the payment of the principal of, premium, if any, or interest on
any Security, or
(b) in respect of a covenant or provision hereof which under Article
Eight cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected by such modification or amendment.
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 414. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 415. Waiver of Stay, Extension or Usury Laws.
Each of the Company and any other obligor under the Securities
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 to take the
benefit or advantage of, any stay or extension law
44
or any usury or other similar law wherever enacted, now or at any time hereafter
in force, which would prohibit or forgive the Company or any other obligor under
the Securities from paying all or any portion of the principal of, premium, if
any, or interest on the Securities contemplated herein or in the Securities or
which may affect the covenants or the performance of this Indenture; and each of
the Company and any other obligor under the Securities (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 416. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE FIVE
THE TRUSTEE
Section 501. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or obligations shall
be implied in this Indenture that are adverse to the Trustee; and
(2) in the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
45
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 501;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
of the Holders of a majority in principal amount of Outstanding
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power confirmed upon the Trustee under this Indenture.
(d) No provision of Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 501.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 502. Notice of Defaults.
Within 30 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail to
all Holders or any other Persons entitled to receive reports pursuant to Trust
Indenture Act Section 313(c), as their names and addresses appear in the
Security Register, notice of such Default, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of, premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
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Section 503. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) the Trustee may rely conclusively and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) wherever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to the taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) in the absence of bad faith on its part, may
rely conclusively, upon an Officers' Certificate and/or an Opinion of Counsel;
(d) the Trustee may consult with counsel and any written 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 in accordance with such advice or Opinion
of Counsel;
(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 the Trustee in is
sole discretion against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request or direction;
(f) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence or willful misconduct of the Trustee;
(g) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document;
but the Trustee in its discretion may make such further inquiry or investigation
in accordance with any of the provisions of this Indenture into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further
47
inquiry or investigation, it shall be entitled to examine such relevant books,
records and premises of the Company as may be reasonable, personally or by agent
or attorney;
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents 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
(i) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights and powers; and
(j) the Trustee shall not be charged with knowledge of any Default or
Event of Default unless either (i) a Responsible Officer shall have actual
knowledge thereof or (ii) the Trustee shall have received notice thereof in
accordance with Section 106 hereof from the Company of any Holder of Notes.
Section 504. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificate 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 the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 505. Trustee and Agents May Hold Securities; Collections; Etc.
The Trustee, any Paying Agent, Conversion Agent, Security Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities, with the same rights it would have if
it were not the Trustee, Paying Agent, Conversion Agent, Security Registrar or
such other agent and, subject to Trust Indenture Act Sections 310 and 311, may
otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Conversion Agent, Security Registrar or such other
agent.
Section 506. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law.
48
Section 507. Compensation and Indemnification of Trustee and its Prior
Claim.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which, to the extent lawful, shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, bad faith or
willful misconduct. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 401(e) or Section
401(f), the expenses (including the reasonable compensation and the expenses and
disbursements 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 Company also covenants to
indemnify the Trustee and each predecessor Trustee, and their respective
officers, agents and employees for, and to hold them harmless against, any
claim, loss, liability, tax, assessment or other governmental charge (other than
taxes applicable to the Trustee's compensation hereunder) or expense incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including enforcement of this Section
507 and also including any liability which the Trustee may incur as a result of
failure to withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or investigating
any claim of liability in the premises. The obligations of the Company under
this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee and each predecessor Trustee. As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of Holders of particular Securities.
Section 508. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
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Section 509. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under Trust Indenture Act Section 310(a)(1) and which shall
have a combined capital and surplus of at least $100,000,000, and have a
Corporate Trust Office in The City of New York to the extent there is such an
institution eligible and willing to serve. If the Trustee does not have an
office in The City of New York, the Trustee shall appoint an agent in The City
of New York reasonably acceptable to the Company to conduct any activities which
the Trustee is required under this Indenture to conduct in The City of New York.
The Trustee may not rescind any such agency without the consent of the Company,
which consent may not be unreasonably withheld, unless the Trustee appoints a
satisfactory replacement or has a Corporate Trust Office in The City of New
York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 510. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 511.
(b) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice thereof to the Company. Upon receiving
such notice of resignation, the Company shall use its best efforts to promptly
appoint a successor Trustee by Board Resolution or written instrument executed
by authority of the Board of Directors of the Company, a copy of which shall be
delivered to the resigning Trustee and a copy to the successor Trustee. 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, or any Holder who has been a bona fide Holder of a
Security 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. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 509
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 414, any Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.
(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 or written instrument executed by authority of
the Board of Directors of the Company, shall use its best efforts to promptly
appoint a successor Trustee and shall comply with the applicable requirements of
Section 511. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, the Company or a court of
competent jurisdiction has not appointed a successor Trustee, a successor
Trustee shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the retiring
Trustee, and the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who has
been a bona fide Holder for at least six months may, subject to Section 414, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office or agent hereunder.
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Section 511. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee under this Indenture;
but, nevertheless, on the written request of the Company or the successor
Trustee, upon payment of its charges then unpaid, such retiring Trustee shall
pay over to the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such Trustee or such successor Trustee to secure any amounts then
due such Trustee pursuant to the provisions of Section 507.
No successor Trustee with respect to the Securities shall accept
appointment as provided in this Section 511 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Five and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 509 in
The City of New York.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 511, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
510. If the Company fails to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 512. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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 eligible under
Trust Indenture
52
Act Section 310(a) and this Article Five and shall have a combined capital and
surplus of at least $100,000,000.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, amalgamation, conversion or consolidation.
Section 513. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or other obligor under the Securities), 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 SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 601. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date;
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished; and
(c) on the Issue Date, a list of the names and addresses of the general
and limited partners of Mondial and the shareholders of Hazelbank;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no list that would otherwise be required by subsections (a) or (b)
above need be furnished.
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Section 602. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312.
Section 603. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the issuance of Securities, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such
May 15 in accordance with and with respect to the matters required by Trust
Indenture Act Section 313(a).
(b) The Trustee shall promptly transmit to the Company a copy of any
report it transmits to Holders pursuant to this Section 603.
Section 604. Reports by Company.
The Company shall:
(a) file with the Trustee within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall (i) deliver to the Trustee annual audited financial
statements of the Company and its Subsidiaries, prepared on a Consolidated basis
in conformity with GAAP, within 120 days after the end of each fiscal year of
the Company, and (ii) file with the Trustee and the Commission, in accordance
with, and so long as not prohibited by, the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the
54
conditions and covenants of this Indenture as is required from time to time by
such rules and regulations (including such rules and regulations, if any,
referred to in Trust Indenture Act Section 314(a)); and
(c) transmit by mail to all Holders or any other Persons entitled to
receive a report pursuant to Trust Indenture Act Section 313(c), within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section as is required and not prohibited by
rules and regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 701. Company May Merge, Consolidate, Etc., Only on Certain
Terms.
(a) The Company shall not, in a single transaction or series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets to any Person or group of affiliated Persons, or
permit any of its Subsidiaries to enter into any such transaction or
transactions if such transaction or transactions, in the aggregate, would result
in a sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a Consolidated basis to any other Person or group of affiliated
Persons, unless at the time and after giving effect thereto:
(i) either (a) the Company shall be the continuing
corporation, or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company and its Subsidiaries on a Consolidated basis (the
"Surviving Entity") shall be a corporation, partnership, limited
liability company or business trust duly organized and validly existing
under the laws of the United States of America, any state thereof or
the District of Columbia and shall, in either case, expressly assume,
by a supple mental indenture hereto, executed and delivered to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
all the obligations of the Company under the Securities and this
Indenture, and this Indenture shall remain in full force and effect;
55
(ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing;
(iii) the Company or the Surviving Entity shall have
delivered, or caused to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, lease or other
transaction and the supplemental indenture in respect thereto comply
with the provisions described in this Section 701(a) and that all
conditions precedent herein provided for in this Section 701(a)
relating to such transaction have been complied with.
Section 702. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets on a Consolidated basis of the Company in accordance with Section 701
with respect to which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition 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 had been named as the Company. When a
successor assumes all the obligations of its predecessor under this Indenture or
the Securities, the predecessor shall be released from those obligations;
provided that, in the case of a transfer by lease, the predecessor shall not be
released from the payment of principal and interest on the Securities.
Any successor to the Company described in the foregoing paragraph may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution of this Indenture.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 801. Supplemental Indentures and Agreements Without Consent of
Holders.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form and substance reasonably 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 Securities;
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power conferred upon the Company in this
Indenture or the Securities;
(c) to cure any ambiguity or to correct or supplement any provision in
this Indenture or the Securities which may be defective or inconsistent with any
other provision in this Indenture or the Securities;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act, as contemplated by Section 805 or otherwise;
(e) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder;
(f) to comply with Section 1314; and
(g) to clarify or make any other provisions with respect to matters or
questions arising under this Indenture or the Securities; provided that, in each
case, such clarification or provision thus made shall not adversely affect the
interests of the Holders.
Section 802. Supplemental Indentures and Agreements with Consent of
Holders.
Except as permitted by Section 801, with the consent of the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may (i) enter into an indenture or indentures
supplemental, in form and substance reasonably satisfactory to the Trustee, for
the purpose of adding any provisions to or amending,
57
modifying or changing in any manner or eliminating any of the provisions of this
Indenture or the Securities (including, but not limited to, for the purpose of
modifying in any manner the rights of the Holders under this Indenture or the
Securities) or (ii) waive compliance with any provision in this Indenture or the
Securities (other than waivers of past Defaults covered by Section 413 and
waivers of covenants which are covered by Section 910); provided, however, that
no such supplemental indenture, agreement or instrument shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security or waive a default in the payment of the principal
or interest on any Security or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
change the coin or currency in which the principal of any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated Maturity thereof;
(b) amend, change or modify the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 908, including amending, changing or modifying any of
the provisions or definitions with respect thereto.
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain Defaults
hereunder and their consequences provided for in this Indenture;
(d) modify any of the provisions of this Section or Sections 413 or
910, except to increase the percentage of Outstanding Securities required for
such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Security
affected thereby;
(e) except as otherwise permitted under Article Seven, consent to the
assignment or transfer by the Company of any of its rights and obligations under
this Indenture; or
(f) amend or modify any of the provisions of this Indenture relating to
the subordination of the Securities in any manner adverse to the Holders of the
Securities.
Upon the written request of the Company accompanied by a copy of a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
An amendment under this Section 802 or Section 801 may not make any
change that adversely affects the rights under Article Twelve of any holder of
Senior Indebtedness then outstanding unless the requisite holders of each issue
of Senior Indebtedness affected thereby consent to such change.
Section 803. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 603 hereof) shall be fully protected in relying upon,
in addition to the documents required by Section 103, an Opinion of Counsel and
an Officers' Certificate to the effect that the execution of such supplemental
indenture, agreement or instrument is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 804. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 805. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 806. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Eight 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 Securities modified so as to conform to any such supplemental indenture, in
the opinion of the Trustee and the Board of Directors, may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
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Section 807. Record Date.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any supplemental indenture, agreement or
instrument or any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such supplemental indenture, agreement or instrument or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The record date shall be a date
no more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
No such consent shall be valid or effective for more than six months after such
record date. Subject to applicable law, until any supplemental indenture,
agreement, instrument or waiver becomes effective, or a consent to it by a
Holder of a Security shall cease to be valid and effective as set forth in the
preceding sentence, such consent is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
ARTICLE NINE
COVENANTS
Section 901. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of, premium, if
any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
Section 902. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee at 000 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain 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, and
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the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; 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 City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
Section 903. Money for Security Payments to Be Held in Trust.
The Company will, on or before each due date of the principal of,
premium, if any, or interest on, any Securities, deposit with a Paying Agent
(which shall not be the Company) a sum in same day funds sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal, premium,
if any, or interest;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent;
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for any purpose, by Company Order direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were
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held by such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for
the payment of the principal of, premium, if any, or interest on any Security
and remaining unclaimed for two years after such principal and premium, if any,
or interest has become due and payable shall promptly be paid to the Company
upon Company Request; and the Holder of such Security 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; provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of the
Company cause to be published once, in The New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance on such money
then remaining will promptly be repaid to the Company.
Section 904. Corporate Existence.
Subject to Article Seven, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any of its assets in compliance with the terms of
this Indenture.
Section 905. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, on
or before the date the same shall become due and payable, (a) all material
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary and (b) all material lawful claims for labor, materials and
supplies, which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and in
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respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP consistently
applied.
Section 906. Maintenance of Properties.
The Company will cause all material properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be consistent with sound business practice and reasonably
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 906 shall prevent the Company from discontinuing the
maintenance of any such properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of business of the Company and its
Subsidiary and not reasonably expected to have a material adverse effect on the
ability of the Company to perform its obligations hereunder.
Section 907. Insurance.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature reasonably self-insured or insured
with insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in the same general
geographic areas in which the Company and its Subsidiaries operate, except where
the failure to do so would not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, business affairs or
prospects of the Company and its Subsidiaries, taken as a whole.
Section 908. Purchase of Securities upon a Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder
shall have the right, subject to the terms and provisions hereof, to require
that the Company purchase such Holder's Securities, pursuant to an offer
described in subsection (b) of this Section (a "Change of Control Offer"), in
whole or in part in integral multiples of $1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101% of the
principal amount of such Securities, plus accrued and unpaid interest to the
date of purchase (the "Change of Control Purchase Date"), in accordance with the
procedures set forth in paragraphs (b), (c), (d) and (e) of this Section.
(b) Within 30 days following any Change of Control, the Company shall
notify the Trustee thereof and give written notice (a "Change of Control
Purchase Notice") of such Change of Control to each Holder by first-class mail,
postage prepaid, to the Trustee and to each Holder, at his address appearing in
the Security Register stating or including:
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(i) that a Change of Control has occurred, the date of such
event, and that such Holder has the right to require the Company to
repurchase such Holder's Securities at the Change of Control Purchase
Price;
(ii) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control, if any);
(iii) that the Change of Control Offer is being made pursuant
to Section 908(a) and that all Securities properly tendered pursuant to
the Change of Control Offer will be accepted for payment at the Change
of Control Offer Purchase Price;
(iv) the Change of Control Purchase Date which shall be a
Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed or such later date as may be necessary for
the Company to comply with the requirements under the Exchange Act;
(v) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report (or in the event the Company is not
required to prepare any of the foregoing Forms, comparable information
concerning the Company, (ii) a description of material developments in
the Company's business subsequent to the date of the latest of such
reports and (iii) such other information, if any, concerning the
business of the Company and its Subsidiaries which the Company in good
faith believes will enable such Holders to make an informed investment
decision regarding the Change of Control Offer;
(vi) the Change of Control Purchase Price;
(vii) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 902;
(viii) that Securities must be surrendered at least three
Business Days prior to the Change of Control Purchase Date to the
Paying Agent at the office of the Paying Agent or to an office or
agency referred to in Section 902 to collect payment;
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(ix) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Purchase Date;
(x) the procedures for withdrawing a tender of Securities and
Change of Control Purchase Notice;
(xi) that any Security not tendered will continue to accrue
interest; and
(xii) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
on and after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Securities,
each Holder of a Security in respect of which such proper tender was made shall
(unless the tender of such Security is properly withdrawn) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Security. Upon surrender of any such Security for purchase in accordance
with the foregoing provisions, such Security shall be paid by the Company at the
Change of Control Purchase Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Change of Control Purchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 206. If any Security
tendered for purchase in accordance with the provisions of this Section shall
not be so paid upon surrender thereof by deposit of funds with the Paying Agent
in accordance with paragraph (d) below, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Change of Control
Purchase Date at the rate borne by such Security. Holders electing to have
Securities purchased will be required to surrender such Securities to the Paying
Agent at the address specified in the notice at least three Business Days prior
to the Change of Control Purchase Date. Any Security that is to be purchased
only in part shall be surrendered to a Paying Agent in accordance with the
provisions of this Section at the office of such Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, one or more new Securities
of any authorized denomination as requested by such Holder in an aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control Purchase
Date, accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) not later than 11:00 a.m. (New York time) on the
Change of Control
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Purchase Date, deposit with the Paying Agent an amount of cash sufficient to pay
the aggregate Change of Control Purchase Price of all the Securities or portions
thereof which are to be purchased as of the Change of Control Purchase Date and
(iii) not later than 11:00 a.m. (New York time) on the Change of Control
Purchase Date, deliver to the Paying Agent an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Change of Control Purchase Price of the
Securities purchased from each such Holder. Any Securities not so accepted shall
be promptly mailed or delivered by the Paying Agent at the Company's expense to
the Holder thereof. The Company will publicly announce the results of the Change
of Control Offer on the Change of Control Purchase Date. For purposes of this
Section 908, the Company shall choose a Paying Agent which shall not be the
Company.
(e) A tender made in response to a Change of Control Purchase Notice
may be withdrawn before or after delivery by the Holder to the Paying Agent at
the office of the Paying Agent of the Security to which such Change of Control
Purchase Notice relates, by means of a written notice of withdrawal delivered by
the Holder to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 902 to which the related Change of
Control Purchase Notice was delivered not later than three Business Days prior
to the Change of Control Purchase Date specifying, as applicable:
(i) the name of the Holder;
(ii) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
(iii) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by the
Holder as to which such notice of withdrawal is being submitted;
(iv) a statement that such Holder is withdrawing such Holder's
election to have such principal amount of such Security purchased; and
(v) the principal amount, if any, of such Security (which
shall be $1,000 or an integral multiple thereof) that remains subject
to the original Change of Control Purchase Notice and that has been or
will be delivered for purchase by the Company.
(f) As provided in the Securities, the Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price; provided, however, that, (x) to the extent
that the aggregate amount of cash deposited by the Company pursuant to clause
(ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase
Price of the Securities or portions thereof to be purchased, then the Trustee
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shall hold such excess for the Company and (y) unless otherwise directed by the
Company in writing, promptly after the Business Day following the Change of
Control Purchase Date, the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon.
(g) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Change of Control Offer.
(h) Notwithstanding anything to the contrary contained herein, the
Company shall not be obligated to repurchase the Securities pursuant to a Change
of Control Offer, make any payments in respect of a Change of Control Offer or
otherwise comply with this Section 908, (i) if the Company has elected to redeem
all of the Securities in accordance with Article Ten and (ii) until all of the
Company's obligations with respect to change of control offers made to the
holders of the Senior Notes have been satisfied in full.
Section 909. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before a date not
more than 45 days after the end of each fiscal quarter and not more than 90 days
after the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by two executive officers of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not, after a
review of the activities of the Company during such year or such quarter and of
the Company's performance under this Indenture, to the best knowledge, based on
such review, of the signers thereof, the Company has fulfilled all its
obligations and is in compliance with all conditions and covenants under this
Indenture throughout such year or quarter, as the case may be, and, if there has
been a Default, specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed Default, the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission followed by hard copy an Officers' Certificate
specifying such Default, Event of Default, notice or other action, the status
thereof and what action the Company is taking or proposes to take with respect
thereto, within five Business Days of its occurrence.
Section 910. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 905 through 907 if, before or after
the time for such compliance, the Holders of not less than a majority in
aggregate principal amount of the
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Securities at the time Outstanding waive such compliance in such instance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain full force
and effect.
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 1001. Right of Redemption.
(a) The Securities shall not be redeemable at the Company's option
prior to January 29, 2002. Thereafter, the Securities may be redeemed, at the
election of the Company, in whole or in part, subject to the conditions and at
the Redemption Prices specified in the form of Security, together with accrued
and unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Regular Record Dates and Special Record Dates to
receive interest due on relevant Interest Payment Dates).
(b) Notwithstanding the foregoing, at any time, the Company, at its
option, may redeem the Securities, in whole or in part, at any time within 90
days after a Change of Control, upon not less than 30 nor more than 60 days'
notice, in amounts of $1,000 or integral multiples thereof, at a redemption
price equal to the sum of (i) 101% of the principal amount thereof plus (ii)
accrued and unpaid interest to the Redemption Date (subject to the right of
Holders of record on relevant Regular Record Dates and Special Record Dates to
receive interest due on relevant Interest Payment Dates).
(c) Notwithstanding anything in this Indenture to the contrary, (i) the
Company may not redeem that portion, if any, of a Security as to which it has
received a proper conversion notice under Section 1302 prior to the Redemption
Date fixed by the Company and (ii) each Holder shall have a period of not less
than 30 days after notice to such Holder of redemption under Section 1005 within
which to exercise its right to convert pursuant to Article Thirteen.
Section 1002. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
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Section 1003. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1001 shall be evidenced by a Company Order and an Officers' Certificate.
In case of any redemption at the election of the Company, the Company shall, not
less than 30 nor more than 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
Section 1004. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee (or such shorter period as the
Trustee may agree upon), from the Outstanding Securities not previously called
for redemption, by lot or such other method as the Trustee shall deem fair and
reasonable, and the amounts to be redeemed may be equal to $1,000 or any
integral multiple thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1005. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the
identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date upon
surrender of such
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Security, a new Security or Securities in the aggregate principal amount equal
to the unredeemed portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Such notice shall also state the current Conversion Price and the date
on which the right to convert such Securities or portions thereof into Common
Stock will expire.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company. If the Company
elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 1005.
Such notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 1006. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent an amount of money in same day funds sufficient
to pay the Redemption Price of, and, except if the Redemption Date shall be an
Interest Payment Date, accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date unless theretofore converted into
Common Stock pursuant to the provisions hereof. If any Security called for
redemption is converted, any money deposited with the Trustee or with a Paying
Agent for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 206) be paid to the Company on Company
Request. The Trustee or the Paying Agent shall hold in trust for, and return to,
the Company promptly after the Business Day following the Redemption Date any
interest or dividends, if any, earned on amounts
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deposited with the Trustee or the Paying Agent remaining after the payment of
the aggregate Redemption Price for all securities to be redeemed.
Section 1007. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities 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 not have deposited funds in accordance with Section 1006 in
respect of the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 206.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, by deposit or segregation of funds in
accordance with Section 1006, the principal and premium, if any, shall, until
paid, bear interest from the Redemption Date at the rate borne by such Security.
Section 1008. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part shall be
surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 902 (with, if the Company, the Security Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security Registrar or the Trustee, as
the case may be, duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, 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 Security so surrendered that
is not redeemed or purchased.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Securities
herein expressly provided for) and the
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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
(1) all the Securities theretofore authenticated and delivered
(other than (i) lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 205 and (ii) Securities for
whose payment United States dollars have theretofore been deposited in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 903) have been delivered to the
Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) 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 irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount sufficient to pay
and discharge the entire indebtedness on the Securities not theretofore
delivered to the Trustee for cancellation, including principal of,
premium, if any, and accrued interest on such Securities at such
Maturity, Stated Maturity or Redemption Date;
(b) the Company has paid all other sums payable thereunder by the
Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each to the effect that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with and that such satisfaction and discharge will not result
in a breach or violation of, or constitute a default under, this Indenture or a
breach or violation of any agreement to which the Company is a party or by which
either is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 507 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of subsection (a) of this Section, the
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obligations of the Trustee under Section 1102 and the last paragraph of Section
903 shall survive.
Section 1102. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 903, all
United States dollars deposited with the Trustee pursuant to Section 1101 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
the principal of, premium, if any, and interest on the Securities for whose
payment such United States dollars have been deposited with the Trustee.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
Section 1201. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder, by such Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of, premium, if any, and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment as provided in this Article to the prior payment
in full, in cash or Cash Equivalents or in any manner acceptable to the
requisite holders of Designated Senior Indebtedness, of all Senior Indebtedness.
For purposes of this Indenture, the requisite holders of Designated Senior
Indebtedness shall be determined by the instruments governing Designated Senior
Indebtedness.
This Article Twelve shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness; and such provisions are made for the benefit of the holders
of Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
Section 1202. Payment Over of Proceeds Upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of the Company, then and in any
such event:
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(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents or in any other manner acceptable to
the requisite holders of Designated Senior Indebtedness, of all amounts due on
or in respect of all Senior Indebtedness, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character
(excluding Permitted Junior Securities) on account of the principal of, premium,
if any, or interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities (including
any payment or other distribution which may be received from the holders of
Subordinated Indebtedness as a result of any payment on such Subordinated
Indebtedness); and
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (excluding Permitted Junior
Securities), by set-off or otherwise, to which the Holders or the Trustee would
be entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash or Cash Equivalents or in any
other manner acceptable to the requisite holders of Designated Senior
Indebtedness, of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, in respect of principal, premium, if
any, and interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities before all
Senior Indebtedness is paid in full, then and in such event such payment or
distribution (excluding Permitted Junior Securities) (including any payment or
other distribution which may be received from the holders of Subordinated
Indebtedness as a result of any payment on such Subordinated Indebtedness) shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash or Cash Equivalents or in any other manner
acceptable to the requisite holders of Designated Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness and until so paid shall be held in trust for the benefit of
the holders of Senior Indebtedness.
The Consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the sale, assignment, conveyance, transfer, lease or other disposal of
all or substantially all of the
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Company's properties or assets to another Person upon the terms and conditions
set forth in Article Seven shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by sale, assignment, conveyance,
transfer, lease or other disposal of all or substantially all of the Company's
properties or assets, as the case may be, shall, as a part of such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposal, comply with the conditions set forth in Article Seven.
Section 1203. Suspension of Payment When Senior Indebtedness in
Default.
(a) Unless Section 1202 shall be applicable, upon (1) the occurrence of
a Payment Default beyond the applicable grace period, and (2) receipt by the
Trustee (with a copy to the Company) from a representative of holders of any
Designated Senior Indebtedness (a "Senior Representative") of written notice of
a Payment Default, then no payment (other than any payments previously made
pursuant to the provisions described in Article Four) or distribution of any
assets of the Company of any kind or character (excluding Permitted Junior
Securities) shall be made by the Company on account of principal of, premium, if
any, or interest on, the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect of the Securities unless and
until such Payment Default shall have been cured or waived or shall have ceased
to exist or the Designated Senior Indebtedness shall have been discharged or
paid in full in cash or Cash Equivalents, or in any other manner acceptable to
the requisite holders of such Designated Senior Indebtedness, after which the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 1202 shall be applicable, upon (1) the occurrence of
a Non-payment Default and (2) receipt by the Trustee (with a copy to the
Company) from a Senior Representative of written notice of such occurrence, no
payment (other than any payments previously made pursuant to the provisions
described in Article Four) or distribution of any assets of the Company of any
kind or character (excluding Permitted Junior Securities) shall be made by the
Company on account of any principal of, premium, if any, or interest on, the
Securities or on account of the purchase, redemption, defeasance or other
acquisition of or in respect of Securities for a period ("Payment Blockage
Period") commencing on the date of receipt by the Trustee of such notice unless
and until the earliest of (subject to any blockage of payments that may then or
thereafter be in effect under subsection (a) of this Section 1203) (x) 179 days
having elapsed since receipt of such written notice by the Trustee (provided any
Designated Senior Indebtedness as to which notice was given shall not
theretofore have been accelerated), (y) the date such Non-payment Default and
all other Non-payment Defaults as to which notice is also given after such
Payment Blockage Period is initiated shall have been cured or waived or shall
have ceased to exist or the Senior Indebtedness related thereto shall have been
discharged or paid in full in cash or Cash Equivalents or in any other manner
acceptable to the requisite holders of such
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Designated Senior Indebtedness or (z) the date on which such Payment Blockage
Period (and all Non-Payment Defaults as to which notice is given after such
Payment Blockage Period is initiated) shall have been terminated by written
notice to the Company or the Trustee from the Senior Representative or the
holders of at least a majority of the Designated Senior Indebtedness that
initiated such Payment Blockage Period, after which, in each such case, the
Company shall resume making any and all required payments in respect of the
Securities, including any missed payments. Notwithstanding any other provision
of this paragraph (b), in no event shall a Payment Blockage Period extend beyond
179 days from the date of the receipt by the Trustee of the notice referred to
in clause (2) of this paragraph (b) (such 179-day period referred to as the
"Initial Blockage Period"). Any number of notices of Non-Payment Defaults may be
given during the Initial Blockage Period; provided that during any 365-day
consecutive period only one Payment Blockage Period during which payment of
principal of, premium, if any, or interest on, the Securities may not be made
may commence and the duration of such Payment Blockage Period may not exceed 179
days. No Nonpayment Default with respect to Designated Senior Indebtedness which
existed or was continuing on the date of the commencement of any Payment
Blockage Period will be, or can be, made the basis for the commencement of a
second Payment Blockage Period, whether or not within a period of 365
consecutive days, unless such Non-payment Default shall have been cured or
waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to a Senior Representative of the holders
of the Designated Senior Indebtedness or as a court of competent jurisdiction
shall direct and until so paid shall be held in trust for the benefit of the
holders of Senior Indebtedness.
Section 1204. Payment Permitted if No Default.
Nothing contained in this Article, elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payments at any time of principal of,
premium, if any, or interest on the Securities.
Section 1205. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash or
Cash Equivalents or in any other manner acceptable to the requisite holders of
Designated Senior Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of all Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of, premium, if any, and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or
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distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
Notwithstanding anything in this Indenture to the contrary, neither the
issuance and delivery of junior securities upon conversion of Securities in
accordance with Article Thirteen nor the payment of cash in lieu of fractional
shares of Common Stock in accordance with Article Thirteen shall be deemed to
constitute a payment or distribution on account of the principal or interest, if
any, in respect of the Securities. For the purposes of this paragraph, the term
"junior securities" means (a) shares of any stock of any class of the Company,
(b) securities of the Company which are subordinated in right of payment to all
Senior Indebtedness of the Company which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in this
Article Twelve, and (c) any securities into which the Securities become
convertible or exchangeable pursuant to Section 1314 which are securities of a
Person required to enter into a supplemental indenture pursuant to such section
(or Section 801) and are either (x) shares of any stock of any class of such
Person, or (y) securities of such Person which are subordinated in right of
payment to all Senior Indebtedness of such Person which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article Twelve.
Section 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1202, to receive,
pursuant to and in accordance with such Section, cash, property and securities
otherwise payable or deliverable to the Trustee or such
77
Holder, or (2) under the conditions specified in Section 1203, to prevent any
payment prohibited by such Section or enforce their rights pursuant to Section
1203(c).
Section 1207. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the Indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file a proper claim at least 30 days before the expiration of the time
to file such claim, then the holders of Senior Indebtedness, and their agents,
trustees or other representatives are authorized to do so for and on behalf of
the Holders.
Section 1208. No Waiver of Subordination Provisions.
(a) 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 by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of Subsection (a) of this Section,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Company and any other Person; provided, however, that in no
event shall any such actions limit the right of the Holders of the Securities to
take any action to accelerate the maturity of the Securities in accordance with
the provisions set forth in Article Four in this Indenture or to pursue any
rights or remedies hereunder or under applicable laws if the taking of such
action does not otherwise violate the terms of this Article.
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Section 1209. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from a Senior Representative or
any trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee 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 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 on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary or agent thereof, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date; nor shall the Trustee be charged with
knowledge of the curing of any such default or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an officers' certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee by a Person representing himself to be a Senior
Representative or a holder of Senior Indebtedness (or a trustee, fiduciary or
agent therefor) to establish that such notice has been given by a Senior
Representative or a holder of Senior Indebtedness (or a trustee, fiduciary or
agent therefor); provided, however, that failure to give such notice to the
Company shall not affect in any way the ability of the Trustee to rely on such
notice. 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, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, 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.
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Section 1210. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article; provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article.
Section 1211. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to the provisions in this Indenture
regarding compensation and indemnification of the Trustee.
Section 1212. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1211 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1213. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to the provisions described under "Events of Default"
and as set forth in this Indenture or to pursue any rights or remedies hereunder
or under applicable law, subject to the rights, if any, under this Article of
the holders, from time to time, of Senior Indebtedness to receive the cash,
property or securities receivable upon the exercise of such rights or remedies.
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Section 1214. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Article against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly in the
absence of gross negligence or willful misconduct pay over or deliver to
Holders, the Company or any other Person moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Conversion Privilege and Conversion Price.
Subject to the terms and provisions of this Article Thirteen, at any
time following January 30, 2000, a Holder of a Security shall have the right, at
its option, to convert such Security (or any portion of the principal amount
thereof which is $1,000 or an integral multiple of $1,000) at the Conversion
Price then in effect. Such conversion right shall expire at the close of
business on the Business Day immediately preceding January 31, 2004, subject, in
the case of conversion of any Global Security, to any Applicable Procedures. In
case a Security or portion thereof is called for redemption at the election of
the Company or for repurchase pursuant to a Change of Control Offer made by the
Company, such conversion right in respect of the Security or portion thereof
shall expire at the close of business, New York time, on the Business Day
immediately preceding the corresponding Redemption Date or Change of Control
Purchase Date, as the case may be (unless the Company defaults in making the
payment due upon redemption or the consummation of the Change of Control Offer,
as the case may be, in which case the conversion right shall terminate on the
date such default is cured), in each case subject as aforesaid to any Applicable
Procedures with respect to any Global Security. The number of shares of Common
Stock issuable upon conversion of a Security (or portion thereof) is determined
by dividing the principal amount of the Security (or portion thereof) being so
converted by the conversion price in effect on the Conversion Date (the
"Conversion Price").
The initial Conversion Price is stated in Section 7 of the Securities
and is subject to adjustment as provided in this Article Thirteen.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion thereof. (For convenience, the
conversion of all or a
81
portion, as the case may be, of the principal amount of a Security, is
hereinafter sometimes referred to as the conversion of such Security.)
Section 1302. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall: (a)
complete, sign and deliver to the Company at any office or agency maintained by
the Company pursuant to Section 902 an irrevocable written notice (in the form
set forth pursuant to Section 212 hereof) that the Holder elects to convert such
Security, or a portion thereof, and stating a date on which conversion is sought
to be made (the "Specified Date"), which must be on a Business Day and be at
least 10 days after the date of the Company's receipt of such conversion notice,
except in the event that there is an outstanding tender offer for shares of the
Company's Common Stock pursuant to Section 14 of the Securities Exchange Act in
which case the Specified Date must be on a Business Day and be at least five
days after the date of the Company's receipt of such conversion notice; (b)
surrender, not later than 11:00 a.m. (New York time) on the Specified Date or on
such other date and at such other time as such Holder and the Company mutually
agree in writing, such Security to the Company at such office or agency; (c) if
required, furnish appropriate endorsements and transfer documents; (d) if
required, pay all transfer or similar taxes; and (e) if required, pay funds
equal to interest payable on the next Interest Payment Date. The Specified Date
or such other date, as the case may be, on which the Holder satisfies all of the
foregoing requirements is the conversion date (the "Conversion Date").
Except as described in the last paragraph of Section 206, no Holder of
Securities will be entitled upon conversion thereof to any payment or adjustment
for accrued and unpaid interest thereon or for dividends on the shares of Common
Stock issued in connection therewith. Securities surrendered for conversion
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (except any
Security called for redemption on a Redemption Date or for repurchase on a
Change of Control Purchase Date within such period between and including such
Regular Record Date and such Interest Payment Date and, as a result, the right
to convert such Security would terminate during such period) must be accompanied
by payment to the Company in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount converted.
Securities shall be deemed to have been converted immediately prior to
the close of business on the Conversion Date for such Securities in accordance
with the foregoing provisions, and at such time the rights of the Holders of
such Securities as Holders shall cease with respect to the such Securities (or
the portion thereof being converted, as the case may be), and the Person or
Persons entitled to receive the Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such Common Stock at
such time. As promptly as practicable on or after the Conversion Date, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for
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the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share as provided in Section 1303.
All shares of Common Stock delivered upon such conversion of Securities
shall, if required, bear the Private Placement Legend and shall be subject to
the restrictions on transfer provided in such legend.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof a new Security or Securities of authorized
denominations in aggregate principal amount equal to the unconverted portion of
the principal amount of such Security. Any requirements for notice, surrender or
delivery of Securities pursuant to this Article Thirteen shall, with respect to
any Global Security, be subject to any Applicable Procedures.
Section 1303. Fractions of Shares. No fractional shares of Common Stock
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (calculated
to the nearest cent) in respect of such fraction in an amount equal to the same
fraction of the Daily Market Price per share of the Common Stock at the close of
business on the day of conversion (or, if such day is not a trading day, on the
trading day immediately preceding such day) or, alternatively, the Company shall
round up to the next higher whole share.
Section 1304. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common
Stock to holders of Common Stock, (2) make a distribution in shares of Common
Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common
Stock into a greater number of shares of Common Stock or (4) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Common Stock
which he would have owned immediately following such action had such Securities
been converted immediately prior thereto. Any adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision or combination.
83
(b) In case the Company shall issue rights, warrants or options to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of holders of
Common Stock entitled to receive such rights, warrants or options and expiring
not more than 45 days after such record date) to subscribe for or purchase
shares of Common Stock (or securities convertible into Common Stock) at a price
per share less than the current market price (as determined pursuant to
subsection (f) below) of the Common Stock on such record date, the Conversion
Price shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to such record date
by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding on such record date, plus the number of shares of Common Stock
which the aggregate offering price of the offered shares of Common Stock (or the
aggregate conversion price of the convertible securities so offered) would
purchase at such current market price, and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock
shares of any class of stock other than Common Stock, evidences of indebtedness
or other assets (other than cash dividends out of current or retained earnings),
or shall distribute to substantially all holders of Common Stock rights,
warrants or options to subscribe for securities (other than those referred to in
subsection (b) above), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such distribution by
a fraction of which the numerator shall be the current market price (determined
as provided in subsection (f) below) of the Common Stock on the record date
mentioned below less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market
value and described in a Board Resolution) of the portion of the assets so
distributed or of such subscription rights, warrants or options applicable to
one share of Common Stock, and of which the denominator shall be such current
market price of the Common Stock. Such adjustment shall become effective
immediately after the record date for the determination of the holders of Common
Stock entitled to receive such distribution. Notwithstanding the foregoing, in
the event that the Company shall distribute rights, warrants or options (other
than those referred to in subsection (b) above) ("Rights") pro rata to holders
of Common Stock, the Company may, in lieu of making any adjustment pursuant to
this Section 1304, make proper provision so that each holder of a Security who
converts such Security (or any portion thereof) after the record date for such
distribution and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion (the "Conversion Shares"), a number of
Rights to be determined as follows: (i) if such conversion occurs on or prior to
the date for the distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal
84
to the number of Conversion Shares is entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to the Rights; and
(ii) if such conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of Common Stock into which the
principal amount of the Security so converted was convertible immediately prior
to the Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (including any distributions
of cash out of current or retained earnings of the Company but excluding any
cash that is distributed as part of a distribution requiring a Conversion Price
adjustment pursuant to paragraph (c) of this Section) in an aggregate amount
that, together with the sum of (x) the aggregate amount of any other
distributions to all holders of its Common Stock made in cash plus (y) all
Excess Payments, in each case made within the 12 months preceding the date fixed
for determining the stockholders entitled to such distribution (the
"Distribution Record Date") and in respect of which no Conversion Price
adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph
(d) has been made, exceeds 10% of the product of the current market price per
share (determined as provided in paragraph (f) of this Section) of the Common
Stock on the Distribution Record Date times the number of shares of Common Stock
outstanding on the Distribution Record Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this paragraph (d) by a fraction of which the numerator shall be
the current market price per share (determined as provided in paragraph (f) of
this Section) of the Common Stock on the Distribution Record Date less the
amount of such cash and other consideration (including any Excess Payments) so
distributed applicable to one share (based on the pro rata portion of the
aggregate amount of such cash and other consideration (including any Excess
Payments), divided by the shares of Common Stock outstanding on the Distribution
Record Date) of Common Stock and the denominator shall be such current market
price per share (determined as provided in paragraph (f) of this Section) of the
Common Stock on the Distribution Record Date, such reduction to become effective
immediately prior to the opening of business on the day following the
Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the
Company or any Subsidiary for all or any portion of the Common Stock shall be
consummated, if an Excess Payment is made in respect of such tender offer or
other negotiated transaction and the amount of such Excess Payment, together
with the sum of (x) the aggregate amount of all Excess Payments plus (y) the
aggregate amount of all distributions to all holders of the Common Stock made in
cash (specifically including distributions of cash out of retained earnings), in
each case made within the 12 months preceding the date of payment of such
current negotiated transaction consideration or expiration of such current
tender offer, as the case may be (the "Purchase Date"), and as
85
to which no adjustment pursuant to paragraph (c) or paragraph (d) of this
Section or this paragraph (e) has been made, exceeds 10% of the product of the
current market price per share (determined as provided in paragraph (f) of this
Section) of the Common Stock on the Purchase Date times the number of shares of
Common Stock outstanding (including any tendered shares but excluding any shares
held in the treasury of the Company) on the Purchase Date, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying such Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this paragraph
(e) by a fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (f) of this Section) of the Common
Stock on the Purchase Date less the amount of such Excess Payments and such cash
distributions, if any, applicable to one share (based on the pro rata portion of
the aggregate amount of such Excess Payments and such cash distributions,
divided by the shares of Common Stock outstanding on the Purchase Date) of
Common Stock and the denominator shall be such current market price per share
(determined as provided in paragraph (f) of this Section) of the Common Stock on
the Purchase Date, such reduction to become effective immediately prior to the
opening of business on the day following the Purchase Date.
(f) The current market price per share of Common Stock on any date
shall be deemed to be the average of the Daily Market Prices for the shorter of
(i) 30 consecutive Business Days ending on the last full trading day on the
exchange or market referred to in determining such Daily Market Prices prior to
the time of determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such rights,
warrants or options or such other distribution or such negotiated transaction
through such last full trading day on the exchange or market referred to in
determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 1304 shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 1308 below) issuing to
the holder of any Security converted after such record date the shares of Common
Stock and other Capital Stock of the Company issuable upon such conversion over
and above the shares of Common Stock and other Capital Stock of the Company
issuable upon such conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue due bills or other
appropriate evidence of the right to receive such shares.
Section 1305. No Adjustment. No adjustment in the Conversion Price
shall be required until cumulative adjustments amount to 1% or more of the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 1305 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article Thirteen shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. No adjustment need be made
86
for rights to purchase Common Stock pursuant to a Company plan for reinvestment
of dividends or interest. No adjustment need be made for a change in the par
value or no par value of the Common Stock.
Section 1306. Other Adjustments. (a) If, as a result of an adjustment
made pursuant to Section 1304 above, the Holder of any Security thereafter
surrendered for conversion shall become entitled to receive any shares of
Capital Stock of the Company other than shares of its Common Stock, thereafter
the Conversion Price of such other shares so receivable upon conversion of any
Securities shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Article Thirteen.
(b) If, as a result of an adjustment pursuant to this Article Thirteen,
the Holder of a Security thereafter surrendered for conversion would be entitled
to receive shares of two or more classes of the Capital Stock of the Company,
the Board of Directors (whose determination shall be conclusive if made in good
faith and shall be described in a Board Resolution) shall determine the number
of shares of each such class to be issued upon such conversion.
(c) In the event that shares of Common Stock are not delivered after
the expiration of any of the rights, warrants or options referred to in Section
1304(b) and Section 1304(c) hereof, the Conversion Price shall be readjusted to
the Conversion Price which would otherwise be in effect had the adjustment made
upon the issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered.
Section 1307. Adjustments for Tax Purposes. The Company may make such
reductions in the Conversion Price, in addition to those required by Section
1304 above, as it determines to be advisable in order that any stock dividend,
subdivision of shares, distribution or rights to purchase stock or securities or
distribution of securities convertible into or exchangeable for stock made by
the Company to its stockholders will not be taxable to the recipients thereof.
Section 1308. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted, the Company shall promptly mail to the Holders a
notice of the adjustment. The Company shall file with the Trustee and the
Conversion Agent such notice. The notice shall, absent manifest error, be
conclusive evidence that the adjustment is correct. Neither the Trustee nor any
Conversion Agent shall be under any duty or responsibility with respect to any
such notice except to exhibit the same to any Holder desiring inspection
thereof.
87
Section 1309. Notice of Certain Corporate Action. If:
(a) the Company takes any action that would require an adjustment in
the Conversion Price pursuant to Section 1304;
(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 1314; or
(c) there is a dissolution, liquidation or winding down of the Company;
then the Company shall mail or shall deliver to the Trustee and direct the
Trustee to mail to Holders and file with the Trustee and the Conversion Agent a
notice stating the proposed record date for a dividend or distribution or the
proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
The Company shall file and mail the notice at least 15 days before such date.
Failure to file or mail the notice or any defect in it shall not affect the
validity of any transaction referred to in clause (a), (b) or (c) of this
Section.
Section 1310. Company to Reserve Common Stock. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, solely for the purpose of effecting the
conversion of Securities, the whole number of shares of Common Stock then
issuable upon the conversion in full of all outstanding Securities.
Section 1311. Taxes on Conversions. The Company will pay any and all
taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
Section 1312. Covenant as to Common Stock. The Company covenants that
all shares of Common Stock which may be issued upon conversion of Securities
will upon issue be newly issued (and not treasury shares) and be duly
authorized, validly issued, fully paid and nonassessable and, except as provided
in Section 1308, the Company will pay all taxes, liens and charges with respect
to the issue thereof.
Section 1313. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 208.
88
Section 1314. Provisions in Case of Reclassification, Consolidation,
Merger or Sale of Assets. In the event that the Company shall be a party to any
transaction including, without limitation, any (i) 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 Common Stock), (ii) any consolidation of the
Company with, or merger of the Company into, any other Person, any merger of
another Person into the Company (other than a merger which does not result in a
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), (iii) any sale or transfer of all or substantially
all of the assets of the Company or (iv) any other transaction 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 Security then outstanding shall have
the right thereafter to convert such Security only into (subject to funds being
legally available for such purpose under applicable law at the time of such
conversion) the kind and amount of securities, cash and other properly
receivable upon such transaction by a holder of the number of shares of Common
Stock into which such Security might 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 acquired the
Company's shares, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture establishing such rights. Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 1314 shall similarly apply to successive transactions
of the foregoing type.
Section 1315. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article Thirteen, any subsequent event requiring an
adjustment under this Article Thirteen shall cause an adjustment to the
Conversion Price as so adjusted.
[Rest of page intentionally left blank.]
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By:__________________________
Name:
Title:
MARINE MIDLAND BANK
as Trustee
By:__________________________
Name:
Title:
90
EXHIBIT A
(Form of Face of Security)
[If a restricted security, then insert -- THE SECURITY (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY AND ANY SHARES OF COMMON
STOCK ISSUED UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) INSIDE
THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 000 XXXXX XXXXXXXXXX XXX, (X)
XXXXXXX XXX XXXXXX XXXXXX TO A FOREIGN PURCHASER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (B), (C) OR (D), BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OR ANY SECURITY ISSUED IN EXCHANGE FOR OR IN SUBSTITUTION HEREOF OR UPON
THE CONVERSION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]
PRIOR TO JANUARY 30, 2000, THE SECURITY EVIDENCED HEREBY MAY NOT BE TRANSFERRED,
IN WHOLE OR IN PART, TO ANY PERSON FOR ANY PURPOSE, EXCEPT BY OPERATION OF LAW
(INCLUDING THE LAWS OF DESCENT OF ANY JURISDICTION) AND EXCEPT THAT MONDIAL
INDUSTRIES LIMITED PARTNERSHIP, A WISCONSIN LIMITED PARTNERSHIP, MAY TRANSFER
THE SECURITY EVIDENCED HEREBY AND HELD BY IT, OR A PORTION THEREOF, TO ANY OF
ITS GENERAL OR LIMITED PARTNERS OR SHAREHOLDERS AND HAZELBANK, INC., A WISCONSIN
CORPORATION, MAY TRANSFER THE SECURITY EVIDENCED HEREBY AND HELD BY IT, OR A
PORTION THEREOF, TO ANY OF ITS SHAREHOLDERS.
A-1
PLAYTEX PRODUCTS, INC.
---------------
6.0% CONVERTIBLE SUBORDINATED NOTES due 2004
No. ________ $____________
PLAYTEX PRODUCTS, INC., a Delaware corporation (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 ________ United States dollars on
January 31, 2004, at the office or agency of the Company referred to below, and
to pay interest thereon from January 29, 1999 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on January 31 and July 31 commencing July 31, 1999 at the rate of 6.0% per
annum, in United States dollars, until the principal hereof is paid or duly
provided for.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 15 or July 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder in whose name such Security is registered as
of such Regular Record Date, and may be paid on the Special Payment Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (and for which notice shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date) or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in The City
of New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register. Interest shall be
accrued on the basis of a 360-day year of twelve 30-day months.
A-2
Reference is hereby made to the further provisions of this Security 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 duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature, this Security shall
not be 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 by the manual or facsimile signature of its authorized officers.
Dated: ____________
PLAYTEX PRODUCTS, INC.
By:______________________
A-3
(Form of Reverse of Security)
1. This Security is one of a duly authorized issue of Securities of the
Company designated as its 6.0% Convertible Subordinated Notes due 2004 (herein
called the "Securities"), limited (except as otherwise provided in the Indenture
referred to below) in aggregate principal amount to $50,000,000, which may be
issued under and are subject to the terms of an indenture (herein called the
"Indenture") dated as of January 29, 1999, between the Company and Marine
Midland Bank, as trustee (together with any successor Trustee under the
Indenture, the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee and the Holders, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on this Security and (b) certain covenants and related
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
2. The payment of the principal of, interest on or any other amounts
due on the Securities is subordinated in right of payment to all existing and
future Senior Indebtedness of the Company, as described in the Indenture. Each
Holder, by accepting a Security, 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.
3. The Securities are not redeemable by the Company prior to January
29, 2002. Thereafter, the Securities are subject to redemption, in whole or in
part, at the option of the Company upon not less than 30 nor more than 60 days'
prior notice to the Holders by first-class mail, at the election of the Company,
in amounts of $1,000 or integral multiples of $1,000 at a redemption price equal
to 100% of the principal amount, together with accrued and unpaid interest, to
the Redemption Date (subject to the right of Holders of record on relevant
Regular Record Dates or Special Record Dates to receive interest due on an
Interest Payment Date).
Notwithstanding the foregoing, at any time following the Issue Date,
the Company, at its option, may redeem the Securities, in whole or in part, at
any time within 90 days after a Change of Control upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities to be redeemed in
amounts of $1,000 or an integral multiple thereof, at a redemption price equal
to the sum of (i) 101% of the principal amount thereof plus (ii) accrued and
unpaid interest to the redemption date (subject to the right of Holders of
record on relevant Record Dates or Special Record Dates to receive interest due
on an Interest Payment Date).
A-4
If less than all of the Securities are to be redeemed, such portion of
the Securities shall be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant Regular Record Date or Special Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
4. Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or a portion of such Holder's
Securities in amounts of $1,000 or integral multiples of $1,000, at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest to the date of purchase.
5. If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture. Notwithstanding the foregoing, in the
case of an Event of Default from certain events of bankruptcy or insolvency with
respect to the Company, all outstanding Securities will become due and payable
without further action or notice.
6. The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and the Securities and
certain past Defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof whether or not notation of such consent
or waiver is made upon this Security.
7. Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security has the right, at its option, at any time following
January 30, 2000 and prior to the close of business on the Business Day
immediately preceding January 31, 2004, or in case this Security (or a portion
hereof) is called for redemption or
A-5
the Company has made a Change of Control Purchase Offer, then in respect of this
Security (or such portion hereof) until and including but (unless the Company
defaults in making the payment due upon redemption or the consummation of the
Change of Control Offer, as the case may be) not after, the close of business on
the Business Day immediately preceding the corresponding Redemption Date or the
Change of Control Purchase Date, as the case may be, to convert this Security
(or any portion of the principal amount hereof which is $1,000 or an integral
multiple thereof), at the initial Conversion Price of $19.1475 per share,
subject to adjustment as provided in Article Thirteen of the Indenture. The
number of shares of Common Stock issuable upon conversion of this Security is
determined by dividing the principal amount hereof, or of such portion being
converted, by the Conversion Price in effect on the Conversion Date.
To convert this Security (or any portion hereof), the Holder must
surrender this Security and satisfy the other requirements set forth in Section
1302 of the Indenture. In case such surrender shall be made during the period
from the close of business on any Regular Record Date to the opening of business
on the next succeeding Interest Payment Date (unless this Security or the
portion hereof being converted has been called for redemption on a Redemption
Date or repurchase on a Change of Control Purchase Date within such period
between and including such Regular Record Date and such Interest Payment Date
and, as a result, the right to convert would terminate during such period), the
Security shall be accompanied by payment in New York Clearing House Funds or
other funds acceptable to the Company of an amount equal to the interest payable
on such Interest Payment Date on the principal amount of this Security then
being converted. Subject to the aforesaid requirement for payment of interest
and, in the case of a conversion after the close of business on any Regular
Record Date and on or before the next succeeding Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor Security) of record at
such Regular Record Date to receive an installment of interest, no payment or
adjustment is to be made on conversion for interest accrued hereon or dividends
on the Common Stock issued on conversion.
No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest the Company
shall pay a cash adjustment or round up to the next higher whole share as
provided in Article Thirteen of the Indenture. The Conversion Price is subject
to adjustment as provided in Article Thirteen of the Indenture. In addition, the
Indenture provides that in case of certain reclassifications, consolidations,
mergers, sales or transfers of assets or other transactions pursuant to which
the Common Stock is converted into the right to receive other securities, cash
or other property, the right to convert this Security into shares of Common
Stock may be changed, as set forth in the Indenture, into a right to convert it
into securities, cash or other property.
8. No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company
or any other obligor under the Securities (in the event such other obligor is
obligated to make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, premium, if
A-6
any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
9. As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (c) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities a direction inconsistent with such request
and (d) the Trustee shall have failed to institute such proceeding within 60
days; provided, however, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
10. As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, 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 Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
11. The Securities are issuable only in registered form without coupons
in denominations. The Securities initially shall be issuable only in
denominations of $1,000 and any integral multiple thereof and thereafter may be
issued in any denominations. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
12. Prior to due presentment of this Security 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 Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and none of
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
13. Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition (other than pursuant to a lease) of all or
substantially all
A-7
of the properties and assets of the Company in accordance with the Indenture,
subject to the terms and conditions of the Indenture, the successor Person to
such transaction shall become the obligor on this Security, and the Company
shall be discharged from all obligations and covenants under this Security and
the Indenture.
14. All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
A-8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, as Trustee
By:____________________________
Authorized Signatory
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or federal tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:___________
Your Signature:_________________________________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security purchased
by the Company pursuant to Section 908 of the Indenture check the box: [ ]
If you want to have only part of the Security purchased by the Company
pursuant to Section 908 of the Indenture, state the amount (in integral
multiples of $1,000) you elect to have purchased:
$ ___________________________
Date: _______________________
Your Signature:_________________________________________________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee.
A-11
EXHIBIT B
(Form of Conversion Notice)
To: Playtex Products, Inc.
The undersigned holder of this Security hereby irrevocably exercises
the option to convert this Security, or portion hereof (which is $1,000
principal amount or an integral multiple thereof) below designated, for shares
of Common Stock, par value $0.01 per share, of Playtex Products, Inc. on
_________, _____ (the "Specified Date") in accordance with the terms of the
Indenture referred to in this Security. The undersigned acknowledges that in
order for such conversion to be effective, the Specified Date must be a Business
Day and be at least 30 days after the date of Playtex's receipt of this notice,
except in the event that there is an outstanding tender offer for shares of
Playtex's Common Stock pursuant to Section 14 of the Exchange Act in which case
the Specified Date must be on a Business Day and be at least five days, after
the date of the Company's receipt of this notice. The undersigned directs that
the shares issuable and deliverable upon such conversion, together with any
check in payment for fractional shares and any Securities representing any
unconverted principal amount hereof, be issued and delivered to the undersigned
unless a different name has been indicated below. If shares or any portion of
this Security not converted 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: ______________________
[Insert Name of Holder]
_________________________________________
By: _____________________________________
Name:
Title:
Portion of Note to be converted
($1,000 or an integral
multiple thereof): $___________
Amount of Substitute Note to be
issued: $__________
cc: Xxxx, Weiss, Rifkind, Xxxxxxx and Xxxxxxxx
B-1
EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers and exchanges pursuant to
Section 211(d)(i) of the Indenture)
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
6.0% Convertible Subordinated Notes due 2004
(the "Securities")
--------------------------------------------
Reference is hereby made to the Indenture, dated as of January 29, 1999
(the "Indenture"), among Playtex Products, Inc., as Issuer, and Marine Midland
Bank, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Restricted
Securities held in definitive form (CUSIP No. __________) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A or another exemption
under the United States Securities Act of 1933, as amended (the "Securities
Act") and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 144A:
(A) the Securities are being transferred to a person that the
Transferor reasonably believes is purchasing the Securities for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion;
(B) such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A; and
C-1
(C) the Securities have been transferred in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States; or
(2) if the transfer has been effected pursuant to another exemption
under the Act:
(A) the Securities were transferred to a person that the
Transferor reasonably believes is an Institutional Accredited Investor;
and
(B) the Securities have been transferred pursuant to an
exemption from the Securities Act and made in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer.
Dated:______________, _____
[Insert Name of Transferor]
By: _____________________________________
Name:
Title:
cc: Playtex Products, Inc.
C-2
EXHIBIT D
FORM OF TRANSFEREE LETTER OF REPRESENTATION
--------------, ------
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration--Playtex Products
Re: Playtex Products, Inc.
6.0% Convertible Subordinated Notes Due 2004
--------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of 6.0% Convertible
Subordinated Notes due 2004 (the "Convertible Notes") of Playtex Products, Inc.
(the "Company"), we hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act"), (an "Institutional Accredited Investor"), or an
entity in which all of the equity owners are Institutional Accredited
Investors;
(ii) any purchase of Convertible Notes by us will be for our
own account or for the account of one or more other Institutional
Accredited Investors as to which we exercise sole investment
discretion;
(iii) in the event that we purchase any Convertible Notes, we
will acquire such Convertible Notes having a minimum purchase price of
at least $100,000 for our own account and for each separate account for
which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing the Convertible Notes and we and any accounts for which
we are acting are able to bear the economic risks of our or their
investment; and
(v) we are not acquiring the Convertible Notes with a view to
any distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United States
or any other applicable
D-1
jurisdiction; provided that the disposition of our property and the
property of any accounts for which we are acting as fiduciary shall
remain at all times within our control.
We understand that the Convertible Notes have not been registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Convertible Notes, that such Convertible Notes
may be offered, resold, pledged or otherwise transferred only (i) to a person
who we reasonably believe to be a qualified institutional buyer (as defined in
Rule 144A under the Securities Act) in a transaction meeting the requirements of
Rule 144A, in a transaction meeting the requirements of Rule 144 under the
Securities Act, outside the United States to a foreign person in a transaction
meeting the requirements of Rule 904 under the Securities Act, or in accordance
with another exemption from the registration requirements of the Securities Act
(and, unless such transfer occurs in a transaction meeting the requirements of
Rule 144A, based upon an opinion of counsel if the Company so requests), (ii) to
the Company or (iii) pursuant to an effective registration statement under the
Securities Act, and, in each case, in accordance with any applicable securities
laws of any State of the United States or any other applicable jurisdiction. We
understand that the registrar will not be required to accept for registration of
transfer any Convertible Notes, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on transfer have
been complied with. We further understand that the Convertible Notes purchased
by us will bear a legend reflecting the substance of this paragraph. We further
agree to provide to any person acquiring any of the Convertible Notes from a
notice advising such person that resales of the Convertible Notes are restricted
as stated herein.
D-2
We acknowledge that you, the Company and others will rely upon our
confirmation, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein cease to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
---------------------------------------
(Name of Purchaser)
By: ___________________________________
Date: _________________________________
Upon transfer the Convertible Notes would be registered in the name of
the new beneficiary owner as follows:
Name: _________________________________
Address: ______________________________
Taxpayer ID Number: ___________________
D-3
EXHIBIT E
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER 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.
E-1
