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EXHIBIT 4.6
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TEXAS INDUSTRIES, INC.
to
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as Trustee
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INDENTURE
Dated as of __________, 1998
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................2
SECTION 1.1. Definitions..................................................................................2
SECTION 1.2. Compliance Certificate and Opinions..........................................................9
SECTION 1.3. Forms of Documents Delivered to Trustee......................................................9
SECTION 1.4. Acts of Holders.............................................................................10
SECTION 1.5. Notices, Etc. to Trustee and Company........................................................12
SECTION 1.6. Notice to Holders; Waiver...................................................................12
SECTION 1.7. Conflict with Trust Indenture Act...........................................................13
SECTION 1.8. Effect of Headings and Table of Contents....................................................13
SECTION 1.9. Successors and Assigns......................................................................13
SECTION 1.10. Separability Clause........................................................................13
SECTION 1.11. Benefits of Indenture......................................................................13
SECTION 1.12. Governing Law..............................................................................13
SECTION 1.13. Non-Business Days..........................................................................13
ARTICLE II. DEBENTURE FORMS.....................................................................................14
SECTION 2.1. Forms Generally.............................................................................14
SECTION 2.2. Form of Face of Debenture...................................................................14
SECTION 2.3. Form of Reverse Debenture...................................................................17
SECTION 2.4. Additional Provisions Required in Global Debenture..........................................20
SECTION 2.5. Form of Trustee's Certificate of Authentication.............................................20
SECTION 2.6. Form of Conversion Notice...................................................................21
ARTICLE III. DEBENTURES.........................................................................................22
SECTION 3.1. Title and Terms; Paying Agent...............................................................22
SECTION 3.2. Denominations...............................................................................23
SECTION 3.3. Execution, Authentication, Delivery and Dating..............................................23
SECTION 3.4. Temporary Debentures........................................................................24
SECTION 3.5. Registration, Transfer and Exchange.........................................................24
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Debentures............................................26
SECTION 3.7. Payment of Interest; Interest Rights Preserved..............................................27
SECTION 3.8. Persons Deemed Owners.......................................................................28
SECTION 3.9. Cancellation................................................................................28
SECTION 3.10. Computation of Interest....................................................................29
SECTION 3.11. Deferrals of Interest Payment Dates........................................................29
SECTION 3.12. Right of Set-Off...........................................................................30
SECTION 3.13. Agreed Tax Treatment.......................................................................30
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SECTION 3.14. Shortening or Extension of Stated Maturity.................................................30
SECTION 3.15. CUSIP Numbers..............................................................................31
ARTICLE IV. SATISFACTION AND DISCHARGE..........................................................................31
SECTION 4.1. Satisfaction and Discharge of Indenture.....................................................31
SECTION 4.2. Application of Trust Money..................................................................32
ARTICLE V. REMEDIES.............................................................................................32
SECTION 5.1. Events of Default...........................................................................32
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..........................................33
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.............................34
SECTION 5.4. Trustee May File Proofs of Claim............................................................35
SECTION 5.5. Trustee May Enforce Claims Without Possession of Debentures.................................36
SECTION 5.6. Application of Money Collected..............................................................36
SECTION 5.7. Limitation on Suits.........................................................................36
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest;
Direct Action by Holders of Preferred Securities..................................37
SECTION 5.9. Restoration of Rights and Remedies..........................................................37
SECTION 5.10. Rights and Remedies Cumulative.............................................................38
SECTION 5.11. Delay or Omission Not Waiver...............................................................38
SECTION 5.12. Control by Holders.........................................................................38
SECTION 5.13. Waiver of Past Defaults....................................................................38
SECTION 5.14. Undertaking for Costs......................................................................39
ARTICLE VI. TRUSTEE.............................................................................................40
SECTION 6.1. Certain Duties and Responsibilities.........................................................40
SECTION 6.2. Notice of Defaults..........................................................................41
SECTION 6.3. Certain Rights of Trustee...................................................................41
SECTION 6.4. Not Responsible for Recitals or Issuance of Debentures......................................42
SECTION 6.5. May Hold Debentures.........................................................................42
SECTION 6.6. Money Held in Trust.........................................................................42
SECTION 6.7. Compensation and Reimbursement..............................................................43
SECTION 6.8. Disqualification; Conflicting Interests.....................................................43
SECTION 6.9. Corporate Trustee Required; Eligibility.....................................................43
SECTION 6.10. Resignation and Removal; Appointment of Successor..........................................44
SECTION 6.11. Acceptance of Appointment by Successor.....................................................45
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business................................46
SECTION 6.13. Preferential Collection of Claims Against Company..........................................46
SECTION 6.14. Appointment of Authenticating Agent........................................................46
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ARTICLE VII. HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY..................................................47
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders...................................47
SECTION 7.2. Preservation of Information, Communications to Holders......................................48
SECTION 7.3. Reports by Trustee..........................................................................48
SECTION 7.4. Reports by Company..........................................................................48
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............................................49
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms........................................49
SECTION 8.2. Successor Corporation Substituted...........................................................50
ARTICLE IX. SUPPLEMENTAL INDENTURES.............................................................................50
SECTION 9.1. Supplemental Indentures without Consent of Holders..........................................50
SECTION 9.2. Supplemental Indentures with Consent of Holders.............................................51
SECTION 9.3. Execution of Supplemental Indentures........................................................52
SECTION 9.4. Effect of Supplemental Indentures...........................................................53
SECTION 9.5. Conformity with Trust Indenture Act.........................................................53
SECTION 9.6. Reference in Debentures to Supplemental Indentures..........................................53
ARTICLE X. COVENANTS............................................................................................53
SECTION 10.1. Payment of Principal, Premium and Interest.................................................53
SECTION 10.2. Maintenance of Office or Agency............................................................53
SECTION 10.3. Money for Debenture Payments to be Held in Trust...........................................54
SECTION 10.4. Statement as to Compliance.................................................................55
SECTION 10.5. Waiver of Certain Covenants................................................................55
SECTION 10.6. Payment of Trust Costs and Expenses........................................................56
SECTION 10.7. Additional Covenants.......................................................................56
ARTICLE XI. REDEMPTION OF SECURITIES............................................................................57
SECTION 11.1. Applicability of Article...................................................................57
SECTION 11.2. Election to Redeem; Notice to Trustee......................................................57
SECTION 11.3. Selection of Debentures to be Redeemed.....................................................57
SECTION 11.4. Notice of Redemption.......................................................................58
SECTION 11.5. Deposit of Redemption Price................................................................58
SECTION 11.6. Payment of Debentures Called for Redemption................................................59
SECTION 11.7. Right of Redemption of Debentures..........................................................59
ARTICLE XII. CONVERSION OF SECURITIES...........................................................................59
SECTION 12.1. Conversion Rights..........................................................................59
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SECTION 12.2. Conversion Procedures......................................................................60
SECTION 12.3. Conversion Price Adjustments...............................................................62
SECTION 12.4. Reclassification, Consolidation, Merger or Sale of Assets..................................66
SECTION 12.5. Notice of Adjustments of Conversion Price..................................................66
SECTION 12.6. Prior Notice of Certain Events.............................................................67
SECTION 12.7. Certain Defined Terms......................................................................67
SECTION 12.8. Dividend or Interest Reinvestment Plans....................................................68
SECTION 12.9. Certain Additional Rights..................................................................68
SECTION 12.10. Trustee Not Responsible for Determining Conversion Price or Adjustments...................69
ARTICLE XIII. SUBORDINATION OF SECURITIES.......................................................................69
SECTION 13.1. Debentures Subordinate to Senior Debt......................................................69
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc.............................................70
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Debentures...............................71
SECTION 13.4. No Payment When Senior Debt in Default.....................................................71
SECTION 13.5. Payment Permitted if no Default............................................................72
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt............................................72
SECTION 13.7. Provisions Solely to Define Relative Rights................................................72
SECTION 13.8. Trustee to Effectuate Subordination........................................................73
SECTION 13.9. No Waiver of Subordination Provisions......................................................73
SECTION 13.10. Notice to Trustee.........................................................................74
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent............................74
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt..........................................75
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights............................................................................75
SECTION 13.14. Article Applicable to Paying Agents.......................................................75
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment...........................................75
SECTION 13.16. Trust Funds Not Subordinated..............................................................75
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EXHIBIT 4.6
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Indenture whether
or not physically contained therein) and the Indenture, dated as of __________,
1998.
Trust Indenture Act Selection Indenture Selection
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Section 310 (a)(1), (2) and (5)...................................................... 6.9
(a)(3)................................................................... Not Applicable
(a)(4)................................................................... Not Applicable
(b)...................................................................... 6.8, 6.10
(c)...................................................................... Not Applicable
Section 311 (a)...................................................................... 6.13(a)
(b)...................................................................... 6.13(b)
(b)(2)................................................................... 7.3(a)
Section 312 (a)...................................................................... 7.1, 7.2(a)
(b)...................................................................... 7.2(b)
(c)...................................................................... 7.2(c)
Section 313 (a)...................................................................... 7.3(a)
(b)...................................................................... 7.3(b)
(c)...................................................................... 7.3(a)
(d)...................................................................... 7.3(b)
Section 314 (a)(1), (2) and (3)...................................................... 7.4
(a)(4)................................................................... 10.5
(b)...................................................................... Not Applicable
(c)(1)................................................................... 1.2
(c)(2)................................................................... 1.2
(c)(3)................................................................... Not Applicable
(d)...................................................................... Not Applicable
(e)...................................................................... 1.2
(f)...................................................................... Not Applicable
Section 315 (a)...................................................................... 6.1(a)
(b)...................................................................... 6.2, 7.3(a)(6)
(c)...................................................................... 6.1(b)
(d)...................................................................... 6.1(c)
(d)(1)................................................................... 6.1(a)(1)
(d)(2)................................................................... 6.1(c)(2)
(d)(3)................................................................... 6.1(c)(3)
(e)...................................................................... 5.14
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Trust Indenture Act Selection Indenture Selection
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Section 316 (a)...................................................................... 1.1
(a)(1)(A)................................................................ 5.12
(a)(1)(B)................................................................ 5.13
(a)(2)................................................................... Not Applicable
(b)...................................................................... 5.8
(c)...................................................................... 1.4(f)
Section 317 (a)(1)................................................................... 5.3
(a)(2)................................................................... 5.4
(b)...................................................................... 10.3
Section 318 (a)...................................................................... 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
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INDENTURE, dated as of __________, 1998 between TEXAS INDUSTRIES, INC.,
a Delaware corporation (the "Company") having its principal office at 0000 Xxxx
Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000-0000, and __________, a __________
corporation, as Trustee (the "Trustee").
RECITALS
A. For its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
securities to be known as its _____% Convertible Subordinated Debentures due
2028 (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in this
Indenture.
B. TXI Capital Trust I, a Delaware statutory business trust (the
"Trust"), has offered to the public $_____ aggregate liquidation amount of
preferred interests in such Trust (the "Preferred Securities") and proposes to
invest the proceeds from such offering, together with the proceeds of the
issuance and sale by the Trust to the Company of $_____ aggregate liquidation
amount of common interests in such Trust (the "Common Securities" and
collectively with the Preferred Securities, the "Trust Securities"), in $_____
aggregate principal amount of the Debentures.
C. The Company has requested that the Trustee execute and deliver this
Indenture.
D. All requirements necessary to make this Indenture a valid instrument
in accordance with its terms, and to make the Debentures, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed, and the execution and delivery of this
Indenture have been duly authorized in all respects.
E. To provide the terms and conditions upon which the Debentures are to
be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture.
F. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of
the premises and the purchase of the Debentures by the Holders (as defined
herein) thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all of the Holders of the Debentures, as follows:
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ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder means such accounting principles
which are generally accepted at the date or time of such computation; provided
that when two or more principles are so generally accepted, it means that set of
principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Debentures the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate of _____%
per annum compounded quarterly.
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which the Trust has become subject from time to
time as a result of a Tax Event.
"Administrative Trustee" means each Person identified as an
"Administrative Trustee" in the Trust Agreement, solely in such Person's
capacity as Administrative Trustee of the Trust under such Trust Agreement and
not in such Person's individual capacity, or any successor administrative
trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, the Trust shall not be
deemed to be an Affiliate of the Company. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
"Board of Directors" means either the board of directors of the Company
or any committee of the board duly authorized to act hereunder.
"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, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in The City of New York or the State of
Delaware are authorized or required by law or executive order to remain closed.
"Closing Prices" has the meaning specified in Section 12.7(a).
"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 Securities" has the meaning specified in the Recitals of this
Indenture.
"Common Stock" means the common stock, par value $1.00 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Conversion Agent" means the Person appointed to act on behalf of the
holders of Preferred Securities in effecting the conversion of Preferred
Securities to Debentures and Debentures to Common Stock as and in the manner set
forth it the Trust Agreement and this Indenture.
"Conversion Price" has the meaning specified in Section 12.1.
"Conversion Request" means (a) the irrevocable request to be given by a
Holder to the Conversion Agent directing the Conversion Agent to convert the
Holder's Debenture into shares of Common Stock, and (b) the irrevocable request
to be given by a holder of Preferred Securities
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to the Conversion Agent directing the Conversion Agent to exchange such
Preferred Securities for Debentures and to convert such Debentures into Common
Stock on behalf of such holder.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which at the date hereof is __________.
"Corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Current Market Price" has the meaning specified in Section 12.3(f).
"Debt" means, with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent: (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) every
obligation of such Person for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
of another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as obligor
or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or issued
in whole or in part in the form of one or more Global Debentures, the Person
designated as Depositary by the Company pursuant to this Indenture or any
successor thereto.
"Distributions," with respect to the Trust Securities, means amounts
payable in respect of such Trust Securities as provided in the Trust Agreement
and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at
the time of payment, is legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(f).
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"Extension Period" has the meaning specified in Section 3.11.
"Global Debenture" means a Debenture in the form prescribed in Section
2.4 evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Guarantee," with respect to the Trust Securities, means the guarantee
by the Company of Distributions on such Trust Securities to the extent provided
in the Guarantee Agreement.
"Guarantee Agreement," with respect to the Trust Securities, means the
Guarantee Agreement, dated as of __________, 1998, between the Company and
__________, as amended from time to time.
"Holder" means a Person in whose name a Debenture is registered in the
Debenture Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Debentures.
"Junior Subordinated Payment" has the meaning specified in Section
13.2.
"Maturity" when used with respect to the Debentures means the date on
which the principal of the Debentures becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"NYSE" has the meaning specified in Section 12.3(f).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Date" means __________, 1998.
"Outstanding" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
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(ii) Debentures for whose payment or redemption price money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Debentures are held by Holders in whose hands such Debentures are
valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee actually knows to be so
owned shall be so disregarded. Debentures so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not the Company or any other obligor upon the
Debentures or any Affiliate of the Company or such other obligor. Upon the
written request of the Trustee, the Company promptly shall furnish to the
Trustee an Officers' Certificate listing and identifying all Debentures, if any,
known by the Company to be owned or held by or for the account of the Company or
any other obligor on the Debentures or any Affiliate of the Company or such
obligor, and, subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Debentures not listed therein
are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of, premium, if any, or interest on the Debentures
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Debentures, the place or
places where the principal of, premium, if any, and interest on the Debentures
are payable pursuant to Section 3.11.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the Recitals of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
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"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee of such Trust under such Trust Agreement and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Purchased Shares" has the meaning specified in Section 12.3(e).
"Redemption Date," when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means (i) in the case of Debentures represented by one or more Global
Debentures, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Debentures not represented by one or more Global Debentures, the
date which is 15 days next preceding such Interest Payment Date (whether or not
a Business Day).
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"Rights Plan" means a plan of the Company, if any, providing for the
issuance by the Company to all holders of Common Stock of rights entitling the
holders thereof to subscribe for or purchase shares of Common Stock or any class
or series of preferred stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"Debentures" or "Debenture" has the meaning specified in the Recitals
to this Indenture.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of, premium, if any, and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company, whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures, provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which, when incurred and without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the
Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt to any
employee of the Company, (d) Debt which by its terms is subordinated to trade
accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
holders of
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the Debentures as a result of the subordination provisions of this Indenture
would be greater than such payments otherwise would have been (absent giving
effect to this clause (d)) as a result of any obligation of such holders of such
Debt to pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject, and (e) the Debentures.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debenture or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Debenture as the date on which the principal of
such Debenture or such installment of interest is due and payable, in the case
of such principal, as such date may be shortened or extended as provided
pursuant to the terms of such Debenture and this Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel (as
defined in the Trust Agreement) experienced in such matters to the effect that,
as a result of any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities, there is more than an
insubstantial risk that: (i) the Trust is, or will be within 90 days of the date
of such Opinion of Counsel, subject to United States federal income tax with
respect to income received or accrued on the Debentures; (ii) interest payable
by the Company on the Debentures is not, or within 90 days of the date of such
Opinion of Counsel, will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes; or (iii) such Trust is, or will
be within 90 days of the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"Trading Day" has the meaning specified in Section 12.7(b).
"Trust" has the meaning specified in the second recital of this
Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement
between the Company, as depositor, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx and Xxxxx X.
XxXxxx, as Administrative Trustees, First Chicago Delaware Inc. as Delaware
Trustee and __________, as Property Trustee, as amended from time to time.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss. 77aaa-77bbb), as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the Recitals of this
Indenture.
"Vice President," when used with respect to the Company means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.2. COMPLIANCE CERTIFICATE AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company will furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants, compliance with
which constitute a condition precedent), if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.5) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he has
made or caused to be made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3. FORMS OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the
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opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel rendering such Opinion of Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
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(d) The ownership of Debentures shall be proved by the Debenture
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Debentures entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Debentures, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of the relevant Outstanding Debentures on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date, provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of the relevant
Outstanding Debentures on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect), and nothing in this paragraph shall
be construed to render ineffective any action taken by Holders of the requisite
principal amount of the relevant Outstanding Debentures on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of the relevant Debentures in the manner
set forth in Section 1.6.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Debentures entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of the Outstanding
Debentures on such record date shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the Outstanding Debentures on such record
date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of the Outstanding
Debentures on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the
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Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of the Debentures in the manner set forth in Section
1.6.
(h) With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of the Outstanding Debentures in the manner set
forth in Section 10.6 on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section 1.4, the party hereto which set such record date shall be deemed
to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this Section 1.4(h). Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
(i) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any Debenture may do so with regard to all
or any part of the principal amount of such Debenture or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities or
the Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose hereunder (except as otherwise
provided in Section 5.1) if in writing and mailed, first class, postage prepaid,
to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Debenture
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. Where
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this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control.
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision of this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Debentures and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. 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 REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
SECTION 1.13. NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Debentures) payment of principal of,
premium, if any, and interest thereon need
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not be made on such date, but may be made on the next succeeding Business Day
(and no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, until such
next succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity).
ARTICLE II.
DEBENTURE FORMS
SECTION 2.1. FORMS GENERALLY.
The Debentures and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article II, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or automated quotation system on which the Debentures may be listed or
traded or as may, consistently herewith, be determined by the officers executing
such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Debentures may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Debentures may be listed or traded,
all as determined by the officers executing such Debentures, as evidenced by
their execution of such Debentures.
SECTION 2.2. FORM OF FACE OF DEBENTURE.
TEXAS INDUSTRIES, INC. CUSIP _____
_____% Convertible Subordinated Debentures
No. _____ $_____
TEXAS INDUSTRIES, INC., a corporation organized and existing under the
laws of the state of Delaware (the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ______________, or registered assigns, the principal
sum of ______________ Dollars on __________, 2028; provided that the Company,
subject to certain conditions set forth in Section 3.14 of the Indenture, may
shorten the Stated Maturity of the principal of this Debenture to a date not
earlier than __________, 2001. The Company further promises to pay interest on
said principal sum from __________, 1998 or from the most recent interest
payment date (each such date, an "Interest Payment Date") on which interest has
been paid or duly provided for,
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quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year, commencing _____________, 1998,
at the rate of _____% per annum, until the principal hereof shall have become
due and payable, plus Additional Interest, if any, until the principal hereof is
paid or duly provided for or made available for payment and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the rate of _____% per annum, compounded quarterly. The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on this Debenture is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than (i) a Saturday or Sunday or (ii)
a day on which banking institutions in The City of New York or the State of
Delaware are authorized or required by law or executive order to remain closed.
The interest installment so payable, and punctually paid or duly provided for,
on any Interest Payment Date shall, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such interest
installment, which shall be, in the case of Debentures represented by one or
more Global Debentures, the Business Day next preceding such Interest Payment
Date and, in the case of Debentures not represented by one or more Global
Debentures, the date which is 15 days next preceding such Interest Payment Date
(whether or not a Business Day). Any such interest installment not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than ten days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Debentures may be
listed or traded, and upon such notice as may be required by such exchange or
self-regulatory organization, all as more fully provided in the Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Debenture to
defer payment of interest on this Debenture, at any time or from time to time,
for up to 20 consecutive quarterly interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Debenture; and provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary of the Company to, (i)
declare or pay any dividends or
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distributions on or redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Company's capital stock, (ii) make any payment of
principal of, premium, if any, or interest or on or repay, repurchase or redeem
any debt security of the Company that ranks pari passu with or junior in
interest to this Debenture or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to this
Debenture (other than (a) dividends or distributions in the Company's capital
stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under the Guarantee with respect to this
Debenture and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the principal of this Debenture. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Company shall give the Holder of this Debenture and the Trustee notice of
its election to begin any Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on this Debenture
would be payable but for such deferral or, with respect to the Debentures issued
to the Trust, so long as such Debentures are held by the Trust, prior to the
earlier of (i) the next succeeding date on which Distributions on the Preferred
Securities would be payable but for such deferral or (ii) the date the
Administrative Trustees are required to give notice to any securities exchange
or other applicable self-regulatory organization or to holders of such Preferred
Securities of the record date or the date such Distributions are payable, but in
any event not less than one Business Day prior to such record date.
Payment of principal of, premium, if any, and interest on this
Debenture shall be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made, except in the case of Debentures in global form, (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Debenture Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated in
writing at least 15 days before the relevant Interest Payment Date by the Person
entitled thereto as specified in the Debenture Register.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Debt, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
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necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
TEXAS INDUSTRIES, INC.
By:
-----------------------------------------------
[President or Vice President]
Attest:
--------------------------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. FORM OF REVERSE DEBENTURE.
This Debenture is one of a duly authorized issue of securities of the
Company, designated as its _____% Convertible Subordinated Debentures (the
"Debentures"), limited in aggregate principal amount to $_____, issued under an
Indenture, dated as of __________, 1998 (the "Indenture"), between the Company
and _______________, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Debentures, and of the terms upon which the
Debentures are, and are to be, authenticated and delivered. All capitalized
terms used but not defined in this Debenture that are defined in the Indenture
or in the Amended and Restated Trust Agreement, dated as of __________, 1998
(the "Trust Agreement"), among Texas Industries, Inc., as Depositor, and the
Trustees named therein, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.
The Company may at any time, at its option, on or after __________,
2001, and subject to the terms and conditions of Article XI of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to
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100% of the principal amount thereof plus accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date. Upon the occurrence and
during the continuation of a Tax Event, the Company may, at its option, at any
time within 90 days of the occurrence of such Tax Event redeem this Debenture,
in whole but not in part, subject to the provisions of Section 11.7 and the
other provisions of Article XI of the Indenture, at a redemption price equal to
100% of the principal amount thereof plus accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date. In the event of redemption
of this Debenture in part only, a new Debenture or Debentures for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Debentures, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Debentures. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Debentures at the time
Outstanding, on behalf of the Holders of all Debentures, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Debenture shall be conclusive and binding upon such Holder and
upon all future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, in the case of the Debentures
issued to the Trust, if upon an Event of Default the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debentures fail to
declare the principal of all the Debentures to be immediately due and payable,
the holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee; and upon any such declaration the principal amount of
and the accrued interest, including Additional Interest, if any, on all the
Debentures shall become immediately due and payable, provided that the payment
of principal and interest, including Additional Interest, if any, on such
Debentures shall remain subordinated to the extent provided in Article XIII of
the Indenture.
The Holder of any Debenture has the right, exercisable at any time
after __________, 1998 and on or before 5:00 p.m. (New York City time) on the
Business Day immediately preceding the date of repayment of the Debentures,
whether at maturity or upon redemption (either at the option of the Company or
pursuant to a Tax Event), to convert the principal amount thereof (or any
portion thereof that is an integral multiple of $50) into fully paid and
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nonassessable shares of Common Stock at an initial conversion rate of _____
shares of Common Stock for each $50 in aggregate principal amount of Debentures
(equal to a Conversion Price of $_____ per share of Common Stock), subject to
adjustment under certain circumstances. The number of shares issuable upon
conversion of a Debenture is determined by dividing the principal amount of the
Debenture to be converted by the Conversion Price in effect on the Conversion
Date. No fractional shares of Common Stock shall be issued upon conversion and,
in lieu thereof, a cash payment shall be made for any fractional interest. The
outstanding principal amount of any Debenture shall be reduced by the portion of
the principal amount thereof converted into shares of Common Stock.
To convert a Debenture, a Holder shall (i) complete and sign a
Conversion Request substantially in the form attached hereto, (ii) surrender the
Debenture to the Conversion Agent, (iii) furnish appropriate endorsements or
transfer documents if required by the Debenture Registrar or Conversion Agent
and (iv) pay any transfer or similar tax, if required. If a Conversion Request
is delivered on or after the Regular Record Date and prior to the subsequent
Interest Payment Date, the Holder shall be required to pay to the Company the
interest payment to be made on the subsequent Interest Payment Date, and shall
be entitled to receive the interest payable on the subsequent Interest Payment
Date, on the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Notwithstanding the
foregoing, if, during an Extension Period, a notice of redemption is mailed
pursuant to Section 11.06 of the Indenture and a Debenture is converted after
such mailing but prior to the relevant Redemption Date, all accrued but unpaid
interest (including Additional Payments, if any) through the date of conversion
shall be paid to the holder of such Debenture on the Redemption Date. Except as
otherwise provided in the immediately preceding two sentences, in the case of
any Debenture which is converted, interest with a Stated Maturity which is after
the date of conversion of such Debenture shall not be payable, and the Company
shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Debentures being converted, which shall be deemed to be
paid in full. If any Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.07 of the Indenture and this
paragraph) be paid to the Company upon Company Request or, if then held by the
Company, shall be discharged from such trust.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Debenture
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new
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Debentures, of authorized denominations and for the same aggregate principal
amount, shall be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures are issuable only in registered form without coupons in
denominations of $50 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
SECTION 2.4. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL DEBENTURE.
Any Global Debenture issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"This Debenture is a Global Debenture within the meaning of
the Indenture hereinafter referred to and is registered in the name of
a Depositary or a nominee of a Depositary. This Debenture is
exchangeable for Debentures registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances
described in the Indenture and may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary."
SECTION 2.5. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Debentures referred to in the within mentioned
Indenture.
Dated:
------------------------------------
as Trustee
By:
---------------------------------
Authorized Signatory
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SECTION 2.6. FORM OF CONVERSION NOTICE.
CONVERSION REQUEST
To: Texas Industries, Inc.
The undersigned owner of these Debentures hereby irrevocably elects to
convert these Debentures, or the portion below designated, into Common Stock of
the Company (the "Common Stock") in accordance with the terms of the Indenture
(the "Indenture"), dated as of __________, 1998, between the Company and
_______________, as Trustee.
The undersigned owner of these Debentures hereby directs the Conversion
Agent to convert such Debentures on behalf of the undersigned into Common Stock
at the Conversion Price specified in the Indenture. The undersigned owner of
these Debentures also hereby notifies the Conversion Agent that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, should be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: __________
Principal Amount of Debentures to be converted ($50 or integral multiples
thereof): _____________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
-----------------------
-----------------------
-----------------------
(Sign exactly as your name appears on the other side of this Debenture) (for
conversion only)
Please print or type name and address, including zip code, and social security
or other identifying number:
-----------------------
-----------------------
-----------------------
Signature Guarantee:*
-----------------------------------
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ARTICLE III.
DEBENTURES
SECTION 3.1. TITLE AND TERMS; PAYING AGENT.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is limited to $_____________ except for
Debentures authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debentures pursuant to Section 3.4, 3.5, 3.6,
9.6 or 11.6 and except for any Debentures which, pursuant to the last paragraph
of Section 3.3, are deemed never to have been authenticated and delivered
hereunder.
The Debentures shall be known and designated as the "_____% Convertible
Subordinated Debentures" of the Company. Their Stated Maturity shall be
__________, 2028, or if the Company elects to accelerate the maturity date in
accordance with Section 5.2 hereof, such earlier date as the Company selects,
but in no event before __________, 2001.
The Debentures shall bear interest at the rate of _____% per annum,
from __________, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein), in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing ____________,
1998 until the principal thereof is paid or made available for payment. Accrued
interest that is not paid on the applicable Interest Payment Date (even if
unpaid due to an extension of an interest payment period as set forth below in
this Section 3.1) shall bear Additional Interest on the amount thereof. In the
event that any date on which interest is payable on the Debentures is not a
Business Day, then a payment of the interest payable on such date shall be made
on the next succeeding day which is a Business Day (except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day) (and without any interest or other
payment in respect of any such delay), in each case with the same force and
effect as if made on the date the payment was originally payable.
The principal of, premium, if any, and interest on the Debentures shall
be payable at the office of the Paying Agent or Paying Agents as the Company may
designate for such purpose
------------------------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
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from time to time, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made, except in the case of Global Debentures, (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Debenture Register or (ii) by transfer to an account maintained by the Person
entitled thereto as specified in the Debenture Register; provided that proper
transfer instructions have been received by the Regular Record Date.
The Company designates the Trustee as the initial Paying Agent with
respect to the Debentures. The Company may at any time designate additional
Paying Agents or rescind the designation of any Paying Agent or approve a change
in the office through which any Paying Agent acts pursuant to Section 10.2.
The Debentures shall be subordinated in right of payment to Senior Debt
as provided in Article XIII.
SECTION 3.2. DENOMINATIONS.
The Debentures shall be in registered form without coupons and shall be
issuable in denominations of $50 and any integral multiple thereof.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debentures shall be executed on behalf of the Company by its Chief
Executive Officer, President or one of its Vice Presidents under its corporate
seal reproduced or impressed thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Debentures
may be manual or facsimile. Debentures bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debentures or did not hold such offices at the date of such Debentures.
The Debentures may contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Debenture shall be dated the date of its
authentication by the Trustee.
A Debenture shall not be valid until manually authenticated by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Debenture shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Debenture to the
Trustee for cancellation as provided in Section 3.9, for all purposes of this
Indenture such Debenture shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication,
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together with a written order of the Company for the authentication and delivery
of such Debentures signed by its Chief Executive Officer, President or any Vice
President and its Treasurer or any Assistant Treasurer, and the Trustee in
accordance with such written order shall authenticate and deliver such
Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture shall affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Each Debenture shall be dated the date of its authentication.
SECTION 3.4. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Debentures which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Debentures may determine, as
evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company designated for that purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Debentures,
the Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor one or more definitive Debentures, of any
authorized denominations having the same Original Issue Date and Stated Maturity
and having the same terms as such temporary Debentures. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Trustee is hereby
appointed "Debenture Registrar" for the purpose of registering Debentures and
transfers of Debentures as herein provided.
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Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Debentures
of any authorized denominations, of a like aggregate principal amount, of the
same Original Issue Date and Stated Maturity and having the same terms.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Debentures which the Holder making the exchange is entitled to
receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Debenture Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Debentures.
The provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Debentures:
(1) Each Global Debenture authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Debenture or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debenture for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Debenture may be exchanged in whole or in part for Debentures
registered, and no transfer of a Global Debenture in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Debenture or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Debenture or (ii) has ceased
to be a clearing agency registered under the Exchange Act at a time
when the Depositary is required to be so registered to act as
depositary, in either case unless the Company has approved a successor
Depositary within 90 days, (B) there shall have occurred and be
continuing an
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Event of Default with respect to such Global Debenture or (C) the
Company in its sole discretion determines that such Global Debenture
shall be so exchangeable or transferable.
(3) Subject to clause (2) above, any exchange of a Global
Debenture for other Debentures may be made in whole or in part, and all
Debentures issued in exchange for a Global Debenture or any portion
thereof shall be registered in such names as the Depositary for such
Global Debenture shall direct.
(4) Every Debenture authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Debenture or any portion thereof, whether pursuant to this Section 3.5,
Section 3.4, 3.6, 9.6 or 11.6 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Debenture, unless such
Debenture is registered in the name of a Person other than the
Depositary for such Global Debenture or a nominee thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section 3.5, (a) to issue, register the transfer of or
exchange any Debenture during a period beginning at the opening of business 15
days before the day of selection for redemption of Debentures pursuant to
Article XI and ending at the close of business on the day of mailing of notice
of redemption or (b) to register the transfer of or exchange any Debenture so
selected for redemption in whole or in part, except, in the case of any
Debenture to be redeemed in part, any portion thereof not to be redeemed.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If any mutilated Debenture is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new
Debenture of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity and bearing the same interest rate as such mutilated
Debenture, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Debenture and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
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Upon the issuance of any new Debenture under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section 3.6 in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date, shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest payment,
except that, unless otherwise provided in the Debentures, interest payable on
the Stated Maturity of the principal of a Debenture shall be paid to the Person
to whom principal is paid. The initial payment of interest on any Debenture
which is issued between a Regular Record Date and the related Interest Payment
Date shall be payable as provided in such Debenture. At the option of the
Company, interest on any Debentures may be paid (i) by check mailed to the
address of the Person entitled thereto as it shall appear on the Debenture
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as designated by the Person entitled thereto as specified in
the Debenture Register.
Any interest on any Debenture which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date ("Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a
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Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than ten days prior to the
date of the proposed payment and not less than ten days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid, to
each Holder of a Debenture at the address of such Holder as it appears
in the Debenture Register not less than ten days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least
once in a newspaper, customarily published in the English language on
each Business Day and of general circulation in New York City, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the
Debentures may be listed or traded and, upon such notice as may be
required by such exchange (or by the Trustee if the Debentures are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Any interest on any Debenture which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section 3.7, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 3.8. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Debenture is registered on the Debenture
Register as the owner of such Debenture for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7) interest on such
Debenture and for all other purposes whatsoever, whether or not such Debenture
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 3.9. CANCELLATION.
All Debentures surrendered for payment, redemption, registration of
transfer, conversion or exchange shall, if surrendered to any Person other than
the Trustee, be delivered to the
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Trustee, and any such Debentures and Debentures surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Debentures previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debentures so delivered shall be promptly canceled by
the Trustee. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section 3.9, except as expressly
permitted by this Indenture. All canceled Debentures shall be returned by the
Trustee to the Company and destroyed by the Company.
SECTION 3.10. COMPUTATION OF INTEREST.
Interest on the Debentures payable for any full quarterly period shall
be computed on the basis of a 360-day year of twelve 30-day months and interest
on the Debentures for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.11. DEFERRALS OF INTEREST PAYMENT DATES.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of the Debentures,
from time to time to defer the payment of interest on the Debentures for up to
20 consecutive quarterly interest payment periods with respect to each deferral
period (each, an "Extension Period"), during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon, if any, at the rate of _____%, to the extent permitted by
applicable law) to the Persons in whose names the Debentures are registered at
the close of business on the Regular Record Date with respect to the Interest
Payment Date at the end of such Extension Period; provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Debentures; and provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal of, premium, if any, or interest on or repay,
repurchase or redeem any debt security of the Company that ranks pari passu with
or junior in interest to the Debentures or (iii) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company that by their terms rank pari passu with or junior in
interest to the Debentures (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan, or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to such Debenture and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period). Prior to the termination of
any such Extension Period,
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the Company may further defer the payment of interest, provided that no
Extension Period shall exceed 20 consecutive quarterly periods or extend beyond
the Stated Maturity of the principal of the Debentures. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any Interest Payment Date, the Company may elect
to begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Company shall give the Holders of the Debentures and the Trustee written
notice of its election to begin any such Extension Period at least one Business
Day prior to the next succeeding Interest Payment Date on which interest on the
Debentures would be payable but for such deferral or, with respect to Debentures
issued to the Trust, so long as such Debentures are held by the Trust, prior to
the earlier of (i) the next succeeding date on which Distributions on the
Preferred Securities of the Trust would be payable but for such deferral or (ii)
the date the Administrative Trustees of the Trust are required to give notice to
any securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
The Trustee shall promptly give notice, in the name and at the expense
of the Company, of the Company's election to begin any such Extension Period to
the Holders of the Outstanding Debentures.
SECTION 3.12. RIGHT OF SET-OFF.
Notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
thereunder in respect of any Debenture to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under the
Guarantee or under Section 5.8 of this Indenture.
SECTION 3.13. AGREED TAX TREATMENT.
Each Debenture issued hereunder shall provide that the Company and, by
its acceptance of a Debenture or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Debenture intend
that such Debenture constitutes indebtedness and agree to treat such Debenture
as indebtedness for United States federal, local and state tax purposes.
SECTION 3.14. SHORTENING OR EXTENSION OF STATED MATURITY.
The Company shall have the right to shorten the Stated Maturity of the
principal of the Debentures at any time to any date not earlier than the first
date on which the Company has the right to redeem the Debentures. In the event
that the Company elects to shorten or extend the Stated Maturity of the
Debentures, it shall give written notice to the Trustee, and the Trustee shall
give notice of such shortening or extension to the Holders, no less than 30 and
no more than 60 days prior to the effectiveness thereof.
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SECTION 3.15. CUSIP NUMBERS.
The Company in issuing the Debentures may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Debentures or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Debentures herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and delivered
(other than (i) Debentures which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Debentures for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Debentures 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 of the date of deposit, 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, in the case of clause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Debentures are payable sufficient to pay and discharge
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the entire indebtedness on such Debentures not theretofore delivered to
the Trustee for cancellation, for principal, premium, if any and
interest (including any Additional Interest) to the date of such
deposit (in the case of Debentures which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to Section 4.2(1)(B), the
obligations of the Trustee under Section 4.2 and the last paragraph of Section
10.3 shall survive.
SECTION 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Debentures
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for the payment of which such money has been deposited with or
received by the Trustee.
ARTICLE V.
REMEDIES
SECTION 5.1. 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):
(1) default in the payment of any interest upon the Debentures,
including any Additional Interest in respect thereof, when it becomes due and
payable, and continuance of such default for a period of 30 days (subject to the
deferral of any interest payment date in the case of an Extension Period);
(2) default in the payment of the principal of or premium, if any, on
the Debentures at their Maturity;
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(3) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Company in this Indenture (other than a covenant
or warranty a default in the performance of which or the breach of which is
elsewhere in this Section 5.1 specifically dealt with), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debentures a written notice specifying such default or breach and
requiring it to be remedied;
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its' property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness to be adjudicated a bankrupt, or the taking of corporate action
by the Company in furtherance of any such action.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, in the case of the Debentures
issued to the Trust, if, upon an Event of Default, the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debentures fail to
declare the principal amount of all the Debentures to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of the
corresponding Preferred Securities then outstanding shall have such right by a
notice in writing to the Company and the Trustee; and upon any such declaration
such principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Debentures shall become
immediately due and payable. Payment of principal and interest (including any
Additional Interest) on such Debentures shall remain subordinated to the extent
provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default specified
in Section 5.1(4) or 5.1(5) occurs, the principal amount of all the Debentures
shall automatically,
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and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article V
provided, the Holders of a majority in principal amount of the Outstanding
Debentures, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all of the Debentures,
(B) the principal of and premium, if any, on any Debentures which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal
of Debentures which has become due solely by such acceleration, have been cured
or waived as provided in Section 5.13;
provided that, in the case of Debentures held by the Trust, if the Holders of at
least a majority in principal amount of the Outstanding Debentures fail to
rescind and annul such declaration and its consequences, the holders of a
majority in aggregate Liquidation Amount (as defined in the Trust Agreement) of
the Preferred Securities then outstanding shall have such right by written
notice to the Company and the Trustee, subject to the satisfaction of the
conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Debenture when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of and premium, if
any, on any Debenture at the Maturity thereof,
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the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Debentures, the whole amount then due and payable
on such Debentures for principal, premium, if any, and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the amounts 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 Debentures and collect the
money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Debentures, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium, if
any, or interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest (including any Additional
Interest) owing and unpaid in respect to the Debentures and to file
such other papers or documents as may be necessary or advisable and to
take any and all actions as are authorized under the Trust Indenture
Act in order to have the claims of the Holders and any predecessor to
the Trustee under Section 6.7 allowed in any such judicial proceedings;
and
(ii) in particular, the Trustee shall be authorized to collect
and receive any money or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee for
distribution in accordance with Section 5.6, and in the event that the
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Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBENTURES.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Any money or property collected or to be applied by the Trustee
pursuant to this Article V shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money or
property on account of principal, premium, if any, or interest (including any
Additional Interest), upon presentation of the Debentures and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon the Debentures for principal (and premium, if any), interest
(including any Additional Interest) and Additional Taxes, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Debentures for principal, premium, if any, and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. LIMITATION ON SUITS.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
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(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of security or indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of the Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST; DIRECT ACTION BY HOLDERS
OF PREFERRED SECURITIES.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of, premium, if any, and (subject to Section
3.7) interest (including any Additional Interest) on such Debenture on the
respective Stated Maturities expressed in such Debenture (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder. In the case of Debentures held by the Trust, any holder of the
Preferred Securities shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company for enforcement of payment to such holder of principal of,
premium, if any, and (subject to Section 3.7) interest (including any Additional
Interest) on the Debentures having a principal amount equal to the aggregate
Liquidation Amount (as defined in the Trust Agreement) of such Preferred
Securities held by such holder.
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee, any Holder or any holder of Preferred Securities 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, such Holder or such holder of
Preferred Securities, then and in every such case the Company, the Trustee, the
Holders and such holder of Preferred Securities shall, subject to any
determination in
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such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Holders and the holders of Preferred Securities shall continue as though no such
proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee, any Holder of any Debenture or any
holder of any Preferred Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article V or by law to the Trustee
or to the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debentures and, in the case of any Debentures issued to the Trust,
the holders of a majority in Liquidation
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Amount (as defined in the Trust Agreement) of Preferred Securities issued by the
Trust may waive any past default hereunder and its consequences, except a
default:
(1) in the payment of the principal of, premium, if any, or interest
(including any Additional Interest) on any Debenture (unless all Events of
Default, other than the non-payment of the principal of Debentures which has
become due solely by such acceleration, have been cured or annulled as provided
in Section 5.3 and the Company has paid or deposited with the Trustee a sum
sufficient to pay all overdue installments of interest (including any Additional
Interest) on all Debentures, the principal of and premium, if any, on any
Debentures which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures, and all
sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Debenture affected.
Any such waiver shall be deemed to be on behalf of the Holders of all
the Debentures or, in the case of a waiver by holders of Preferred Securities,
by all holders of Preferred Securities.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Debentures,
to any suit instituted pursuant to Section 5.8 by any holder or group of holders
holding in the aggregate more than 10% in aggregate Liquidation Amount (as
defined in the Trust Agreement) of Preferred Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
premium, if any, or interest (including any Additional Interest) on any
Debenture on or after the respective Stated Maturities expressed in such
Debenture.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and
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covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE VI.
TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
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(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.1.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder, the Trustee shall transmit
by mail to all Holders of Debentures, as their names and addresses appear in the
Debenture 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 (including any
Additional Interest) on any Debenture, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Debentures; and provided, further, that, in the case
of any default of the character specified in Section 5.1(3), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section 6.2, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Debenture
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in
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respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Debenture or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The Recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debentures. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5. MAY HOLD DEBENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Debenture
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Debenture
Registrar or such other agent.
SECTION 6.6. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company, as borrower, agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense (including the reasonable
compensation and the expenses and disbursements of its agents and counsel)
incurred without negligence or bad faith, arising out of or in connection with
the acceptance or administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. This indemnification shall survive the termination
of this Indenture.
To secure the Company's payment obligations in this Section 6.7, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Debentures on all money or property held or collected by the Trustee.
Such lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act. Nothing herein shall prevent the Trustee from filing with
the Commission the application referred to in the second to last paragraph of
said Section 310(b).
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
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(b) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee pursuant to
a rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees, in either case having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section 6.9,
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 6.9, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article VI.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after such
removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Debenture for at least six months,
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(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,
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then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Debenture for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debenture for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Debentures as their names and addresses appear in the Debenture Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in Section 6.11(a).
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article VI.
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SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VI, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated, and in case any
Debentures shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Debentures issued
upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6. Debentures so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Debentures by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, or of any state
or territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.14 the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.14, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or
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consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such corporation shall be otherwise eligible under this
Section 6.14, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all Holders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.14.
If an appointment is made pursuant to this Section 6.14, the Debentures
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within mentioned
Indenture.
Dated: /s/
---------------------------------------
As Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
As Authorized Officer
ARTICLE VII.
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company shall furnish or cause to be furnished to the Trustee:
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(a) semi-annually, not more than 15 days after January 15 and July 15
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Debenture Registrar.
SECTION 7.2. PRESERVATION OF INFORMATION, COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Debenture
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Debentures are listed and with the Commission. The Company will promptly notify
the Trustee when any Debentures are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust
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Indenture Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of Trust
Indenture Act Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of, premium, if any, and interest
(including any Additional Interest) on all the Debentures and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of Debentures held by the Trust, such consolidation,
merger, conveyance, transfer or lease is permitted under the Trust Agreement and
Guarantee and does not give rise to any breach or violation of the Trust
Agreement or Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies with
this Article VIII and that all conditions precedent
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herein provided for relating to such transaction have been complied with; and
the Trustee, subject to Section 6.1, may rely upon such Officers' Certificate
and Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.1.
SECTION 8.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Debentures
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the written order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations prescribed herein, the Trustee shall authenticate and shall make
available for delivery any Debentures which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Debentures which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Debentures so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Debentures theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debentures had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Debentures thereafter to
be issued as may be appropriate.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company contained
herein and in the Debentures;
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(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company;
(3) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
(4) to add any additional Events of Default;
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Outstanding Debenture created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (6)
shall not adversely affect the interest of the Holders in any material respect
or, in the case of the Debentures issued to the Trust and for so long as any of
the corresponding Preferred Securities issued by the Trust shall remain
outstanding, the holders of such Preferred Securities;
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trust hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11(b); or
(8) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debentures, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Debenture affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 with respect to the deferral of the
payment of interest on the Debentures, change the Stated Maturity of the
principal of, or any installment of interest (including any Additional Interest)
on, any Debenture, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption thereof, or
change the place of payment where, or the coin or currency in which, any
Debenture or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on
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or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date);
(2) reduce the percentage in principal amount of the Outstanding
Debentures, the consent of the Holders of which 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;
(3) modify any of the provisions of this Section 9.2, Section 5.13 or
Section 10.5, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Debenture affected thereby; or
(4) modify the provisions in Article XIII with respect to the
subordination of Outstanding Debentures in a manner adverse to the Holders;
provided, further, that, in the case of Debentures issued to the Trust, so long
as any of the Preferred Securities issued by the Trust remains outstanding, (i)
no such amendment shall be made that adversely affects the holders of such
Preferred Securities in any material respect, and no termination of this
Indenture shall occur, and no waiver of any Event of Default or compliance with
any covenant under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation Amount (as
defined in the Trust Agreement) of the Preferred Securities then outstanding
unless and until the principal of, premium, if any, and all accrued and, subject
to Section 3.7, unpaid interest (including any Additional Interest) on the
Debentures have been paid in full, and (ii) no amendment shall be made to
Section 5.8 that would impair the rights of the holders of Preferred Securities
provided therein without the prior consent of the holders of each Preferred
Security then outstanding unless and until the principal of, premium, if any,
and all accrued and (subject to Section 3.7) unpaid interest (including any
Additional Interest) on the Debentures have been paid in full.
It shall not be necessary for any Act of Holders under this Section 9.2
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Debentures.
ARTICLE X.
COVENANTS
SECTION 10.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders that it
shall duly and punctually pay the principal of, premium, if any, and interest
(including Additional Interest) on the Debentures in accordance with the terms
of the Debentures and this Indenture.
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Debentures
an office or agency where Debentures may be presented or surrendered for payment
and an office or agency where Debentures may be surrendered for registration of
transfer, conversion or exchange and where notices and demands to or upon the
Company in respect of the Debentures and this Indenture may be served. The
Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company shall give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all of such purposes, and may
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from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Debentures for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation and any change in the location of any such
office or agency.
SECTION 10.3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it shall,
on or before each due date of the principal of, premium, if any. or interest on
any of the Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium, if any,
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the Trustee
of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it shall,
prior to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Debentures, deposit with a Paying Agent a sum 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, if
any, or interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of its failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.3,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest (including Additional Interest) on Debentures in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Debentures) in the making of any payment of principal, premium,
if any, or interest (including Additional Interest);
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
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the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest (including Additional Interest) on any Debenture and remaining
unclaimed for two years after such principal, premium, if any, or interest has
become due and payable shall (unless otherwise required by mandatory provision
of applicable escheat or abandoned or unclaimed property law) be paid on Company
Request to the Company, or (if then held by the Company) shall (unless otherwise
required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) be discharged from such trust; and the Holder of such Debenture
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, 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 publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.4. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company, covering the
preceding fiscal year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.5. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 9.1(3) or 9.1(4), if before
or after the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Debentures shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
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SECTION 10.6. PAYMENT OF TRUST COSTS AND EXPENSES.
Since the Trust is being formed solely to facilitate an investment in
the Debentures, the Company, in its capacity as the issuer of the Debentures,
hereby covenants to pay all debts and obligations (other than with respect to
the Preferred Securities and Common Securities) and all costs and expenses of
the Trust (including all costs and expenses relating to the organization of the
Trust, the fees and expenses of the Trustees and all costs and expenses relating
to the operation of the Trust) and to pay any and all taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed on the Trust by the United States or any other taxing authority, so that
the net amounts received and retained by the Trust and the Property Trustee
after paying such expenses shall be equal to the amounts the Trust and the
Property Trustee would have received had no such costs or expenses been incurred
by or imposed on the Trust. The obligations of the Company to pay all debts,
obligations, costs and expenses of the Trust (other than with respect to the
Preferred Securities and Common Securities) shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture.
SECTION 10.7. ADDITIONAL COVENANTS.
The Company covenants and agrees with each Holder of Debentures that it
shall not, and it shall not permit any Subsidiary of the Company to, (i) declare
or pay any dividends or distributions on, or redeem purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock,
(ii) make any payment of principal of, premium, if any, or interest on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Company of debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Debentures (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
and (d) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company's benefit plans for its directors, officers or
employees, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that was entered into prior to the commencement of
such Extension Period) if at such time (x) there shall have occurred any event
of which the Company has actual knowledge that (A) with the giving of notice or
the lapse of time or both, would constitute an Event of Default with respect to
the Debentures and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (y) if the Debentures are held by the Trust, the
Company shall be in default with respect to its payment of any obligations under
the Guarantee or (z) the Company shall have given notice of its election to
begin an Extension Period with respect to the Debentures as provided herein and
shall not have rescinded such notice, or such Extension Period or any extension
thereof shall be continuing.
The Company also covenants: (i) to maintain directly or indirectly 100%
ownership of the Common Securities; provided, however, that any permitted
successor of the Company hereunder
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may succeed to the Company's ownership of the Common Securities; (ii) not to
voluntarily terminate, wind-up or liquidate the Trust, except (a) in connection
with a distribution of the Debentures to the holders of the Trust Securities in
liquidation of the Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement; and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause the Trust to remain classified as a grantor trust and
not an association taxable as a corporation for United States federal income tax
purposes.
ARTICLE XI.
REDEMPTION OF SECURITIES
SECTION 11.1. APPLICABILITY OF ARTICLE.
Redemption of Debentures as permitted or required by any form of
Debenture issued pursuant to this Indenture shall be made in accordance with
such form of Debenture and this Article XI; provided, however, that if any
provision of any such form of Debenture shall conflict with any provision of
this Article XI, the provision of such form of Debenture shall govern. Except as
otherwise set forth in the form of Debenture, each Debenture shall be subject to
partial redemption only in the amount of $50 or integral multiples thereof.
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The Company's election to redeem any Debentures shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption of the Debentures
at the election of the Company, the Company shall, not less than 45 nor more
than 60 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the
principal amount of Debentures to be redeemed. In the case of any redemption of
Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing compliance
with such restriction.
SECTION 11.3. SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, by lot or such other method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Debenture, provided that the unredeemed
portion of the principal amount of any Debenture shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Debenture. If less than all the Debentures are to be redeemed, the
particular Debentures to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Debentures of
such specified tenor not previously called for redemption in accordance with the
preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 11.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the 30th day, and not earlier than the 60th day,
prior to the Redemption Date, to each Holder of Debentures to be redeemed, at
the address of such Holder as it appears in the Debenture Register.
Each notice of redemption shall identify the Debentures to be redeemed
(including CUSIP number, if a CUSIP number has been assigned to such Debentures)
and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Debentures are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal
amounts) of the particular Debentures to be redeemed;
(d) that on the Redemption Date, the Redemption Price shall become due
and payable upon each such Debenture or portion thereof, and that interest
thereon shall cease to accrue on and after said date; and
(e) the place or places where such Debentures are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. New York City time on the Redemption Date specified
in the notice of redemption given as provided in Section 11.4, the Company shall
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay
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the Redemption Price of, and any accrued interest (including Additional
Interest) on, all the Debentures which are to be redeemed on that date.
SECTION 11.6. PAYMENT OF DEBENTURES CALLED FOR REDEMPTION.
If any notice of redemption has been given as provided in Section 11.4,
the Debentures or portion of Debentures with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price. On presentation and
surrender of such Debentures at a Place of Payment specified in such notice,
such Debentures or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price, together with accrued interest
(including any Additional 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 Debentures, or one or
more Predecessor Debentures, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.7.
Upon presentation of any Debenture redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the Holder thereof, at the expense of the Company, a new Debenture or
Debentures, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Debenture so presented and having the same
Original Issue Date, Stated Maturity and terms. If a Global Debenture is so
surrendered, such new Debenture shall also be a new Global Debenture.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium, if any, on such
Debenture shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Debenture.
SECTION 11.7. RIGHT OF REDEMPTION OF DEBENTURES.
The Company, at its option, may redeem such Debentures (i) on or after
__________, 2001, in whole at any time or in part from time to time, or (ii)
upon the occurrence and during the continuation of a Tax Event, at any time
within 90 days following the occurrence of such Tax Event in respect of the
Trust, in whole (but not in part), in each case at a Redemption Price equal to
100% of the principal amount thereof.
ARTICLE XII.
CONVERSION OF SECURITIES
SECTION 12.1. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article XII,
the Debentures are convertible, at the option of the Holder, at any time after
__________, 1998, and on or before 5:00 p.m. (New York City time) on the
Business Day immediately preceding the date of repayment of such Debentures,
whether at maturity or upon redemption, into fully paid and nonassessable shares
of Common Stock at an initial conversion rate of _____ shares of Common Stock
for each $50 in aggregate principal amount of Debentures (equal to a conversion
price (the
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"Conversion Price") of $_____ per share of Common Stock, subject to adjustment
as described in this Article XII). A Holder of Debentures may convert any
portion of the principal amount of the Debentures into that number of fully paid
and nonassessable shares of Common Stock (calculated as to each conversion to
the nearest 1/100th of a share) obtained by dividing the principal amount of the
Debentures to be converted by the Conversion Price. In case a Debenture or
portion thereof is called for redemption, such conversion right in respect of
the Debenture or portion so called shall expire at 5:00 p.m. (New York City
time) on the Business Day immediately preceding the corresponding Redemption
Date, unless the Company defaults in making the payment due upon redemption.
SECTION 12.2. CONVERSION PROCEDURES.
(a) To convert all or a portion of the Debentures, the Holder thereof
shall deliver to the Conversion Agent an irrevocable Conversion Request setting
forth the principal amount of Debentures to be converted, together with the name
or names, if other than the Holder, in which the shares of Common Stock should
be issued upon conversion and, if such Debentures are definitive Debentures,
surrender to the Conversion Agent the Debentures to be converted, duly endorsed
or assigned to the Company or in blank. In addition, a holder of Preferred
Securities may exercise its right under the Trust Agreement to exchange such
Preferred Securities for Debentures which shall be converted into Common Stock
by delivering to the Conversion Agent an irrevocable Conversion Request setting
forth the information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Preferred Security for a portion of the
Debentures held by the Trust (at an exchange rate of $50 principal amount of
Debentures for each Preferred Security) and (ii) to immediately convert such
Debentures, on behalf of such Holder, into Common Stock pursuant to this Article
XII and, if such Preferred Securities are in definitive form, surrendering such
Preferred Securities, duly endorsed or assigned to the Company or in blank. So
long as any Preferred Securities are outstanding, the Trust shall not convert
any Debentures except pursuant to a Conversion Request delivered to the
Conversion Agent by a holder of Preferred Securities.
If a Conversion Request is delivered on or after the Regular Record
Date and prior to the subsequent Interest Payment Date, the Holder shall be
required to pay to the Company the interest payable to the Holder on the
subsequent Interest Payment Date prior to receiving the shares of Common Stock,
and shall be entitled to receive the interest payable on the subsequent Interest
Payment Date, on the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as provided in
the immediately preceding sentence, the Company shall not make, or be required
to make, any payment, allowance or adjustment for accumulated and unpaid
interest, whether or not in arrears, on converted Debentures; provided, however,
that if notice of redemption of Debentures is mailed or otherwise given to
Holders of Debentures, then, if any Holder of Debentures converts any Debentures
into Common Stock on any date on or after the date on which such notice of
redemption is mailed or otherwise given, and if such date of conversion falls on
any day from and including the first day of an Extension Period and on or prior
to the Interest Payment Date upon which such Extension Period ends, such
converting Holder shall be entitled to receive either (i) if the date of such
conversion falls after a Regular Record Date and on or prior to the next
succeeding Interest Payment Date, all accrued and unpaid interest on such
Debentures (including interest thereon, if
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any, to the extent permitted by applicable law) to such Interest Payment Date,
or (ii) if the date of such conversion does not fall on a date described in
clause (i) above, all accrued and unpaid interest on such Debentures (including
interest thereon, if any, to the extent permitted by applicable law) to the most
recent Interest Payment Date prior to the date of such conversion, which
interest shall, in either such case, be paid to such converting Holder unless
the date of conversion of such Debentures is on or prior to the Interest Payment
Date upon which such Extension Period ends and after the Regular Record Date for
such Interest Payment Date, in which case such interest shall be paid to the
person who was the Holder of such Debentures (or one or more predecessor
Debentures) at 5:00 p.m. (New York City time) on such Regular Record Date.
Except as otherwise set forth above in this paragraph, in the case of any
Debenture which is converted, interest whose Stated Maturity is after the date
of conversion of such Debenture shall not be payable, and the Company shall not
make nor be required to make any other payment, adjustment or allowance with
respect to accrued but unpaid interest (including Additional Interest, if any)
on the Debentures being converted, which shall be deemed to be paid in full. If
any Debenture called for redemption is converted, any money deposited with the
Trustee or with any paying agent or so segregated and held in trust for the
redemption of such Debenture shall (subject to any right of the Holder of such
Debenture or any Predecessor Debenture to receive interest as provided in this
Indenture) be paid to the Company upon Company Request or, if then held by the
Company, shall be discharged from such trust.
Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m. (New York City time) on the day on which the Conversion Request was
received (the "Conversion Date") by the Conversion Agent from the Holder or from
a holder of the Preferred Securities effecting a conversion thereof pursuant to
its conversion rights under the Trust Agreement, as the case may be. The Person
or Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as a record holder or holders of such Common
Stock as of the Conversion Date. As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver at the office of the
Conversion Agent, unless otherwise directed by the Holder in the Conversion
Request, a certificate or certificates for the number of full shares of Common
Stock issuable upon such conversion, together with the cash payment, if any, in
lieu of any fraction of any share to the Person or Persons entitled to receive
the same. The Conversion Agent shall deliver such certificate or certificates to
each Person or Persons.
(b) Subject to any right of the Holder of such Debenture or any
Predecessor Debenture to receive interest as provided in Section 12.2(a), the
Company's delivery upon conversion of the fixed number of shares of Common Stock
into which the Debentures are convertible (together with the cash payment, if
any, in lieu of fractional shares) shall be deemed to satisfy the Company's
obligation to pay the principal amount at maturity of the portion of Debentures
so converted and any Unpaid interest (including Additional Interest, if any)
accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Common Stock shall be issued as a result of
conversion, but in lieu thereof, the Company shall pay to the Conversion Agent a
cash adjustment in an amount equal to the same fraction of the last reported
sale price of such fractional interest on the date on which the Debentures or
Preferred Securities, as the case may be, were duly surrendered
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to the Conversion Agent for conversion, or, if such day is not a Trading Day, on
the next Trading Day, and the Conversion Agent in turn shall make such payment,
if any, to the Holder of the Debentures or the holder of the Preferred
Securities so converted.
(d) In the event of the conversion of any Debenture in part only, a new
Debenture or Debentures for the unconverted portion thereof will be issued in
the name of the Holder thereof upon the cancellation thereof in accordance with
Section 3.6.
(e) In effecting the conversion transactions described in this Section
12.2, the Conversion Agent is acting as agent of the holders of Preferred
Securities (in the exchange of Preferred Securities for Debentures) and as agent
of the Holders of Debentures (in the conversion of Debentures into Common
Stock), as the case may be, directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized (i) to exchange Preferred Securities
for Debentures held by the Trust from time to time in connection with the
conversion of such Preferred Securities in accordance with this Article XII and
(ii) to convert all or a portion of the Debentures into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with the
provisions of this Article XII and to deliver to the Trust a new Debenture or
Debentures for any resulting unconverted principal amount.
SECTION 12.3. CONVERSION PRICE ADJUSTMENTS.
The Conversion Price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) If the Company shall (i) pay a dividend or make a distribution with
respect to the Common Stock in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, (iii) combine the outstanding shares of
Common Stock into a smaller number of shares or (iv) issue by reclassification
of the shares of Common Stock any shares of capital stock of the Company, then
the Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Debentures thereafter surrendered for
conversion shall be entitled to receive the number of shares of capital stock of
the Company which he would have owned immediately following such action had such
Debentures been converted immediately prior thereto. An adjustment made pursuant
to this Section 12.3(a) shall become effective immediately after the record date
in the case of a dividend or other distribution and shall become effective
immediately after the effective date in case of a subdivision, combination or
reclassification (or immediately after the record date if a record date shall
have been established for such event). If, as a result of an adjustment made
pursuant to this Section 12.3(a), the Holder of any Debenture thereafter
surrendered for conversion shall become entitled to receive shares of two or
more classes or series of capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a Board
Resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price between or among shares of such classes or series of
capital stock.
(b) If the Company shall issue rights or warrants to all holders of the
Common Stock entitling them (for a period expiring within 45 days after the
record date mentioned in this Section 12.3) to subscribe for or purchase shares
of Common Stock at a price per share less than
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the Current Market Price per share of Common Stock on such record date, then the
Conversion Price for the Debentures shall be adjusted to equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of issuance of such rights or warrants by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such Current Market Price, and the
denominator of which shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase. Such adjustment
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such rights or warrants. For the purposes of
this Section 12.3(b), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not issue any rights or warrants in respect of the shares of
Common Stock held in the treasury of the Company. In case any rights or warrants
referred to in this Section 12.3(b) in respect of which an adjustment shall have
been made shall expire unexercised within 45 days after the same shall have been
distributed or issued by the Company, the Conversion Price shall be readjusted
at the time of such expiration to the Conversion Price that would have been in
effect if no adjustment had been made on account of the distribution or issuance
of such expired rights or warrants.
(c) Subject to the last sentence of this Section 12.3(c), if the
Company shall, by dividend or otherwise, distribute to all holders of Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in Section 12.3(b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
12.3(a)), then the Conversion Price shall be reduced to the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by Section 12.3(c)
by a fraction, the numerator of which shall be the Current Market Price per
share of the Common Stock on the date fixed for the payment of such distribution
(the "Reference Date") less the fair market value (as determined in good faith
by the Board of Directors, whose determination shall be conclusive and described
in a Board Resolution), on the Reference Date, of the portion of the evidences
of indebtedness, shares of capital stock, cash and assets so distributed
applicable to one share of Common Stock and the denominator of which shall be
such Current Market Price per share of Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following the
Reference Date. In the event that such dividend or distribution is not so paid
or made, the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not occurred.
If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 12.3(c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
Current Market Price per share of Common Stock. For purposes of this Section
12.3(c), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than such shares of
Common Stock or such rights or warrants (making any
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Conversion Price reduction required by this Section 12.3(c)) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or
such rights or warrants (making any further Conversion Price reduction required
by Section 12.3(a) or 12.3(b)), except (A) the Reference Date of such dividend
or distribution as defined in this Section 12.3(c) shall be substituted as (a)
"the record date in the case of a dividend or other distribution," and (b) "the
record date for the determination of stockholders entitled to receive such
rights or warrants" and (c) "the date fixed for such determination" within the
meaning of Sections 12.3(a) and 12.3(b), and (B) any shares of Common Stock
included in such dividend or distribution shall not be deemed outstanding for
purposes of computing any adjustment of the Conversion Price in Section 12.3(a).
(d) If the Company shall pay or make a dividend or other distribution
on the Common Stock exclusively in cash (excluding all cash dividends paid out
of the retained earnings of the Company), then the Conversion Price shall be
reduced to equal the price determined by multiplying the Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this Section 12.3(d) by a fraction, the numerator of which shall
be the Current Market Price per share of Common Stock on the date fixed for the
payment of such distribution less the amount of cash so distributed (and not
excluded as provided in the above parenthetical phrase) applicable to one share
of Common Stock and the denominator of which shall be such Current Market Price
per share of the Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the date fixed for the
payment of such distribution; provided, however, that in the event the portion
of the cash so distributed applicable to one share of Common Stock is equal to
or greater than the Current Market Price per share of the Common Stock on the
record date mentioned above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder of Debentures shall have the right
to receive upon conversion the amount of cash such Holder would have received
had such Holder converted each Debenture immediately prior to the record date
for the distribution of the cash. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such record
date had not been fixed.
(e) If the Company or any of its subsidiaries shall make a tender or
exchange offer (other than an odd-lot offer) for all or any portion of the
Common Stock and such tender or exchange offer shall involve the payment by the
Company or such subsidiary of consideration per share of Common Stock having a
fair market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer that exceeds 110% of the Current Market Price per
share of Common Stock on the Trading Day next succeeding the Expiration Time,
then the Conversion Price shall be reduced to equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this Section
12.3(e) by a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Current Market Price per share of Common Stock
on the Trading Day next succeeding the Expiration Time and the denominator of
which shall be the sum of (x) the fair market value (determined as aforesaid) of
the aggregate consideration payable to stockholders based on the acceptance (up
to
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any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares"), and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Current
Market Price per share of Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time.
(f) For the purpose of any computation under Sections 12.3(b), (c), (d)
or (e), the "Current Market Price" per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than the earlier of the day in
question or, if applicable, the day before the "ex" date with respect to the
issuance or distribution requiring such computation; provided, however, that if
another event occurs that would require an adjustment pursuant to Sections
12.3(a) through (e), inclusive, the Board of Directors may make such adjustments
to the Closing Prices during such five Trading Day period as it deems
appropriate to effectuate the intent of the adjustments in this Section 12.3, in
which case any such determination by the Board of Directors shall be set forth
in a Board Resolution and shall be conclusive. For purposes of this Section
12.3(f), the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on the New York Stock Exchange (the "NYSE") or on such successor securities
exchange as the Common Stock may be listed or in the relevant market from which
the Closing Prices were obtained without the right to receive such issuance or
distribution, and (ii) when used with respect to any tender or exchange offer,
means the first date on which the Common Stock trades regular way on such
securities exchange or in such market after the Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections (a) through (e), as it considers to be
advisable to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for income
tax purposes. The Company from time to time may reduce the Conversion Price by
any amount for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period, and the Board of Directors shall
have made a determination that such reduction would be in the best interest of
the Company, which determination shall be conclusive. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall mail to
Holders a notice of the reduction at least 15 days prior to the date the reduced
Conversion Price takes effect. Such notice shall state the reduced Conversion
Price and the period it shall be in effect.
(h) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this Section 12.3(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
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(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder of the Debentures.
SECTION 12.4. RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF
ASSETS.
In the event that the Company shall be a party to any transaction
involving (a) any recapitalization or reclassification of the Common Stock
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination of the
Common Stock), (b) 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), (c) any sale,
transfer or lease of all or substantially all of the assets of the Company or
(d) any compulsory share exchange, in each case 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 Outstanding Debenture shall have the
right thereafter to convert each Debenture only into the kind and amount of
securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which such
Debenture could have been converted immediately prior to such transaction.
The Company or the Person formed by such consolidation or resulting
from such merger or which acquired such assets or which acquires the shares of
the Company, as the case may be, shall make provision in its certificate or
articles of incorporation or other constituent document to establish such right.
Such certificate or articles of incorporation or other constituent document
shall provide for adjustments which, for events subsequent to the effective date
of such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XII.
SECTION 12.5. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chairman of the Board, President or a Vice
President of the Company and by its Treasurer or an Assistant Treasurer of the
Company setting forth the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based, and such certificate shall
forthwith be filed with the Trustee, the Conversion Agent, the Debenture
Registrar and the registrar for the Preferred Securities; and
(b) notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Preferred Securities and Holders
of Debentures at their last addresses as they appear upon the Debenture
Registrar and the securities register for the Trust Securities.
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SECTION 12.6. PRIOR NOTICE OF CERTAIN EVENTS.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on the Common Stock, other than (A) a dividend payable in shares
of Common Stock or (B) a dividend payable in cash that would not require an
adjustment pursuant to Section 12.3(c) or (d), or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 12.3(e);
(b) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of stock of
any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a subdivision
or combination of the outstanding Common Stock, or a change in par value, or
from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company shall be required, or the sale or transfer of
all or substantially all of the assets of the Company or of any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
other property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the securities register of the Trust or (2)
cause to be mailed to all Holders at their last addresses as they shall appear
in the Debenture Register, at least 15 days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a
record (if any) is to be taken for the purpose of such dividend, distribution,
rights or warrants or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 12.7. CERTAIN DEFINED TERMS.
The following definitions shall apply to terms used in this Article
XII:
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(a) "Closing Prices" of any security on any day means the last reported
sale price for such security, regular way, on such day or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, of such security, in either case as reported on the NYSE
Composite Tape or, if the security is not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which such security is
listed or admitted to trading, or, if not listed or admitted to trading on a
national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc., or, if such security is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which such security is listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of such
security in the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
NYSE member firm selected from time to time by the Board of Directors for that
purpose or, if not so available in such manner, as otherwise determined in good
faith by the Board of Directors.
(b) "Trading Day" means a day on which securities are traded on the
national securities exchange or quotation system used to determine the Closing
Price.
SECTION 12.8. DIVIDEND OR INTEREST REINVESTMENT PLANS.
Notwithstanding the foregoing provisions, the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Company and the investment of additional
optional amounts in shares of Common Stock under any such plan, and the issuance
of any shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Company pursuant to any
option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Debentures were first issued, shall not be deemed
to constitute an issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Company to which any of the adjustment provisions
described above shall apply. There also shall be no adjustment of the Conversion
Price in case of the issuance of any stock (or securities convertible into or
exchangeable for stock) of the Company except as specifically described in this
Article XII.
SECTION 12.9. CERTAIN ADDITIONAL RIGHTS.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on the Common Stock referred to in Section 12.3(c) or (d)
(including dividends or distributions referred to in the last sentence of
Section 12.3(c)), then the Holders, upon the conversion thereof subsequent to
5:00 p.m. (New York City time) on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment in respect of such
distribution, also shall be entitled to receive for each share of Common Stock
into which the Debentures are converted, the portion of the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital stock,
cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company (whose election shall be
evidenced by a Board Resolution) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holders any portion of
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such distribution not consisting of cash or securities of the Company, pay such
Holders an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution). If any conversion of Debentures described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder so converted is
entitled to receive in accordance with the immediately preceding sentence, the
Company may elect (such election to be evidenced by a Board Resolution) to
distribute to such Holder a due xxxx for the shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets to
which such Holder is so entitled, provided that such due xxxx (i) meets any
applicable requirements of the principal national securities exchange or other
market on which the Common Stock is then traded and (ii) requires payment or
delivery of such shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Common Stock receiving such
distribution.
SECTION 12.10. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION
PRICE OR ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind of account) of
any shares of Common Stock or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debenture; and neither
the Trustee nor any Conversion Agent makes any representation with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property upon the surrender of any Debenture for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of the
Company contained in Article X or this Article XII.
ARTICLE XIII.
SUBORDINATION OF SECURITIES
SECTION 13.1. DEBENTURES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Debenture, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article XIII, the payment of the
principal of, premium, if any, and interest (including any Additional Interest)
on each and all of the Debentures are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt.
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SECTION 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (a "Proceeding"), then the holders
of Senior Debt shall be entitled to receive payment in full of all amounts due
or to become due on such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, before the Holders are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company
subordinated to the payment of the Debentures, such payment or distribution
being hereinafter referred to as a "Junior Subordinated Payment"), on account of
principal of, premium, if any, or interest (including any Additional Interest)
on the Debentures or on account of the purchase or other acquisition of
Debentures by the Company or any Subsidiary and to that end the holders of
Senior Debt shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Junior Subordinated Payment, which may be
payable or deliverable in respect of the Debentures in any such Proceeding;
provided, however, that holders of Senior Debt shall not be entitled to receive
payment of any such amounts to the extent that such holders would be required by
the subordination provisions of such Senior Debt to pay such amounts over to the
obligees on trade accounts payable or other liabilities arising in the ordinary
course of the Company's business.
In the event that, notwithstanding the foregoing provisions of this
Section 13.2, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all amounts due or to become due on all Senior Debt are paid in
full or payment thereof is provided for in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of Senior Debt, and if such fact shall,
at or prior to the time of such payment or distribution, have been made known to
the Trustee or such Holder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the payment
of all amounts due or to become due on all Senior Debt remaining unpaid, to the
extent necessary to pay all amounts due or to become due on all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt; provided, however, that holders of Senior Debt shall
not be entitled to receive payment of any such amounts to the extent that such
holders would be required by the subordination provisions of such Senior Debt to
pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's business.
For purposes of this Article XIII only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Debentures are so subordinated as provided in this Article XIII.
The consolidation
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of the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
Proceeding for the purposes of this Section 13.2 if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article VIII.
SECTION 13.3. PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF
DEBENTURES.
In the event that any Debentures are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Debentures
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of, premium, if any, or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any
Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section 13.3, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section 13.3 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.4. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event and during the continuation of any default in the payment
of principal of, premium, if any, or interest on any Senior Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such event or
default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of, premium, if any, or interest
(including any Additional Interest), if any, on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any
Subsidiary, in each case unless and until all amounts due or to become due on
such Senior Debt are paid in full.
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In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section 13.4, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section 13.4 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
SECTION 13.5. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XIII or elsewhere in this Indenture
or in any of the Debentures shall prevent (a) the Company, at any time except
during the pendency of any Proceeding referred to in Section 13.2 or under the
conditions described in Sections 13.3 and 13.4, from making payments at any time
of principal of, premium, if any, or interest (including Additional Interest) on
the Debentures or (b) the application by the Trustee of any money deposited with
it hereunder to the payment of or on account of the principal of, premium, if
any, or interest (including any Additional Interest) on the Debentures or the
retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article XIII.
SECTION 13.6. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become due on
all Senior Debt, or the provision for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this Article XIII
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Debentures are subordinated to the Senior
Debt and is entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of, premium, if
any, and interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders or the Trustee would be
entitled except for the provisions of this Article XIII, and no payments over
pursuant to the provisions of this Article XIII to the holders of Senior Debt by
Holders or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Debt and the Holders, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
SECTION 13.7. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article XIII are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Debt, on the other hand. Nothing contained in this Article
XIII or elsewhere in this Indenture or in the Debentures is
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intended to or shall (a) impair, as between the Company and the Holders, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders the principal of, premium, if any, and interest (including any
Additional Interest) on the Debentures as and when the same shall become due and
payable in accordance with their terms, (b) affect the relative rights against
the Company of the Holders and creditors of the Company other than their rights
in relation to the holders of Senior Debt or (c) prevent the Trustee or the
Holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article XIII
of the holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Debenture by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination provided
in this Article XIII and appoints the Trustee his or her attorney-in-fact for
any and all such purposes.
SECTION 13.9. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article XIII or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt, or otherwise amend or supplement in any manner
Senior Debt or any instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Debt; (iii) release
any Person liable in any manner for the collection of Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 13.10. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Debentures. Notwithstanding the provisions of this
Article XIII or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Debentures, unless
and until the Trustee shall have received written notice thereof from the
Company or a
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holder of Senior Debt or from any trustee, agent or representative therefor;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 13.10 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including the payment of the principal of, premium, if any, or interest
(including any Additional Interest) on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
it 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.
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee therefor).
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 Debt to
participate in any payment or distribution pursuant to this Article XIII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt 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 XIII, and if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
SECTION 13.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee, subject to the provisions of Section 6.1, and
the Holders shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such 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, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XIII.
SECTION 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article XIII or otherwise. With respect to the holders of Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article XIII and no implied
covenants or obligations with respect to holders of Senior Debt shall be read
into this Indenture against the Trustee.
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SECTION 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII with respect to any Senior Debt which may
at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article XIII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.7.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article XIII 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 XIII in addition to or in place of the Trustee.
SECTION 13.14. ARTICLE APPLICABLE TO PAYING AGENTS.
If at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article XIII 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 XIII in addition or in place of the Trustee.
SECTION 13.15. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article XIII only, (a) the issuance and
delivery of junior securities upon conversion or exchange of Debentures shall
not be deemed to constitute a payment or distribution on account of the
principal of, premium, if any, or interest (including any Additional Interest)
on Debentures or on account of the purchase or other acquisition of Debentures,
and (b) the payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion or exchange of a Debenture shall be
deemed to constitute payment on account of the principal of such security. For
the purposes of this Section 13.15, the term "junior securities" means (i)
shares of any stock of any class of the Company and (ii) securities of the
Company which are subordinated in right of payment to all Senior Debt that may
be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Debentures
are so subordinated as provided in this Article XIII.
SECTION 13.16. TRUST FUNDS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from funds held in trust under Article IV by the Trustee for the payment of
principal of, premium, if any, and interest on the Debentures shall not be
subordinated to the prior payment of any Senior Debt of the Company or subject
to the restrictions set forth in this Article XIII and no Holder shall be
obligated to pay over any such funds to the Company or any holder of Senior Debt
of the Company or any other creditor of the Company.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
TEXAS INDUSTRIES, INC.
By:
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[Name]
[Title]
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as Trustee
By:
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Name:
Title:
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