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Exhibit 10.26
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Phoenix Duff & Xxxxxx Corporation
TO
Xxxxxx Trust and Savings Bank, as Trustee
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INDENTURE
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Dated as of April 1, 1998
6% Convertible Subordinated Debentures due 2015
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Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of April 1,1998
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ............................................................ 609
(a)(2) ............................................................ 609
(a)(3) ............................................................ Not Applicable
(a)(4) ............................................................ Not Applicable
(a)(5) ............................................................ 609
(b) ............................................................... 608
610
Section 311(a) ............................................................... 613
(b) ............................................................... 613
(b)(2) ............................................................ 703
(c) ............................................................... Not Applicable
Section 312(a) ............................................................... 701
702(a)
(b) ............................................................... 702(b)
(c) ............................................................... 702(c)
Section 313(a) ............................................................... 703
(b) ............................................................... 703
(c) ............................................................... 703
(d) ............................................................... 703
Section 314(a) ............................................................... 704
(b) ............................................................... Not Applicable
(c)(1) ............................................................ 102
(c)(2) ............................................................ 102
(c)(3) ............................................................ Not Applicable
(d) ............................................................... Not Applicable
(e) ............................................................... 102
Section 315(a) ............................................................... 601(a)
(b) ............................................................... 602
703
(c) ............................................................... 601(b)
(d)(1) ............................................................ 601(a)(1)
(d)(2) ............................................................ 601(c)(2)
(d)(3) ............................................................ 601(c)(3)
(e) ............................................................... 514
Section 316(a) ............................................................... 101
(a)(1)(A) ......................................................... 502
512
(a)(1)(B) ......................................................... 513
(a)(2) ............................................................ Not Applicable
(b) ............................................................... 508
(c) ............................................................... 104(e)
Section 317(a)(1) ............................................................ 503
(a)(2) ............................................................ 504
(b) ............................................................... 1003
Section 318(a) ............................................................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY ...................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions ............................................... 1
"Act" .............................................................. 2
"Affiliate" ........................................................ 2
"Agent" ............................................................ 2
"Authenticating Agent" ............................................. 2
"Board of Directors" ............................................... 2
"Board Resolution" ................................................. 2
"Business Day" ..................................................... 2
"Closing Price" .................................................... 2
"Commission" ....................................................... 2
"Common Stock" ..................................................... 3
"Company" .......................................................... 3
"Company Request" or "Company Order" ............................... 3
"Conversion Agent" ................................................. 3
"Corporate Trust Office" ........................................... 3
"Corporation" ...................................................... 3
"Defaulted Interest" ............................................... 3
"Event of Default" ................................................. 3
"Holder" ........................................................... 3
"Indenture" ........................................................ 3
"Interest Payment Date" ............................................ 3
"Maturity" ......................................................... 3
"Officers' Certificate" ............................................ 3
"Opinion of Counsel" ............................................... 3
"Outstanding" ...................................................... 4
"Paying Agent" ..................................................... 4
"Person" ........................................................... 4
"Predecessor Security" ............................................. 4
"Preferred Stock" .................................................. 4
"Redemption Date" .................................................. 5
"Redemption Price" ................................................. 5
"Regular Record Date" .............................................. 5
"Responsible Officer" .............................................. 5
"Security Register" and "Security Registrar" ....................... 5
"Senior Indebtedness" .............................................. 5
"Special Record Date" .............................................. 6
"Stated Maturity" .................................................. 6
"Subsidiary" ....................................................... 6
"Trading Day" ...................................................... 6
"Trustee" .......................................................... 6
"Trust Indenture Act" .............................................. 6
"U.S. Government Obligations" ...................................... 6
"Vice President" ................................................... 7
SECTION 102. Compliance Certificates and Opinions ........................ 7
SECTION 103. Form of Documents Delivered to Trustee ...................... 7
SECTION 104. Acts of Holders ............................................. 8
SECTION 105. Notice, Etc., to Trustee and the Company .................... 9
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SECTION 106. Notice to Holders; Waiver ...................................... 9
SECTION 107. Conflict with Trust Indenture Act .............................. 9
SECTION 108. Effect of Headings and Table of Contents ....................... 10
SECTION 109. Successors and Assigns ......................................... 10
SECTION 110. Separability Clause ............................................ 10
SECTION 111. Benefits of Indenture .......................................... 10
SECTION 112. Governing Law ................................................ 10
SECTION 113. Legal Holidays ................................................. 10
SECTION 114. Execution in Counterparts ...................................... 10
SECTION 115. The Company's Obligations ...................................... 10
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally ................................................ 11
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms ................................................ 11
SECTION 302. Denominations of Securities .................................... 12
SECTION 303. Execution, Authentication, Delivery and Dating ................. 12
SECTION 304. Temporary Securities ........................................... 12
SECTION 305. Registrar ...................................................... 13
SECTION 307. Payment of Interest; Interest Rights Preserved ................. 14
SECTION 308. Persons Deemed Owners .......................................... 16
SECTION 310. Computation of Interest ........................................ 16
SECTION 311. CUSIP Numbers .................................................. 16
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture ........................ 16
SECTION 402. Application of Trust Money ..................................... 17
SECTION 403. Reinstatement .................................................. 18
ARTICLE FIVE
EVENTS OF DEFAULT; REMEDIES
SECTION 501. Events of Default .............................................. 18
SECTION 502. Acceleration of Maturity; Rescission and Annulment ............. 19
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee 20
SECTION 504. Trustee May File Proofs of Claim ............................... 21
SECTION 505. Trustee May Enforce Claims Without Possession of Securities .... 21
SECTION 506. Application of Money Collected ................................. 21
SECTION 507. Limitation on Suits ............................................ 22
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert .................................... 23
SECTION 509. Restoration of Rights and Remedies ............................. 23
SECTION 510. Rights and Remedies Cumulative ................................. 23
SECTION 511. Delay or Omission Not Waiver ................................... 23
SECTION 512. Control by Holders ............................................. 23
SECTION 513. Waiver of Past Defaults ........................................ 24
SECTION 514. Undertaking for Costs .......................................... 24
SECTION 515. Waiver of Stay or Extension Laws ............................... 25
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ............................ 25
SECTION 602. Notice of Defaults ............................................. 26
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SECTION 603. Certain Rights of Trustee ...................................... 26
SECTION 604. Not Responsible for Recitals or Issuance of Securities ......... 28
SECTION 605. Trustee May Hold Securities .................................... 28
SECTION 606. Money Held in Trust ............................................ 28
SECTION 607. Compensation and Reimbursement ................................. 28
SECTION 608. Disqualification; Conflicting Interests ........................ 29
SECTION 609. Corporate Trustee Required; Eligibility ........................ 29
SECTION 610. Resignation and Removal; Appointment of Successor .............. 29
SECTION 611. Acceptance of Appointment by Successor. ........................ 31
SECTION 612. Merger, Conversion, Consolidation or Succession to Business .... 31
SECTION 613. Preferential Collection of Claims Against Company .............. 31
SECTION 614. Appointment of Authenticating Agent ............................ 31
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders ...... 33
SECTION 702. Preservation of Information; Communications To Holders ......... 33
SECTION 703. Reports by Trustee ............................................. 34
SECTION 704. Reports by Company ............................................. 34
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. .......... 35
SECTION 802. Successor Corporation Substituted .............................. 36
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. ............ 36
SECTION 902. Supplemental Indentures with Consent of Holders. ............... 37
SECTION 903. Execution of Supplemental Indentures ........................... 38
SECTION 904. Effect of Supplemental Indentures .............................. 38
SECTION 905. Conformity with Trust Indenture Act. ........................... 38
SECTION 906. Reference in Securities to Supplemental Indentures. ............ 38
SECTION 907. Notice of Supplemental Indenture. .............................. 38
SECTION 908. Revocation and Effect of Consents .............................. 39
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest .................... 39
SECTION 1002. Maintenance of Office or Agency ............................... 39
SECTION 1003. Money for Security Payments to Be Held in Trust ............... 40
SECTION 1004. Corporate Existence ........................................... 41
SECTION 1005. Limitation on Dividends and Other Distributions ............... 41
SECTION 1006. Statement by Officers as to Default ........................... 41
SECTION 1007. Waiver of Certain Covenants ................................... 42
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption ........................................... 42
SECTION 1102. Applicability of Article ...................................... 42
SECTION 1103. Election to Redeem; Notice to Trustee ......................... 42
SECTION 1104. Selection by Trustee of Securities to Be Redeemed ............. 43
SECTION 1105. Notice of Redemption .......................................... 43
SECTION 1106. Deposit of Redemption Price ................................... 44
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SECTION 1107. Securities Payable on Redemption Date ......................... 44
SECTION 1108. Securities Redeemed in Part ................................... 45
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Right of Conversion ........................................... 45
SECTION 1202. Issuance of Common Stock: Time of Conversion .................. 46
SECTION 1203. No Adjustments in Respect of Interest or Dividends ............ 46
SECTION 1204. Adjustment of Conversion Rate ................................. 47
SECTION 1205. No Fractional Shares .......................................... 49
SECTION 1206. Conversion in Case of Consolidation; Merger or Sale of
Assets ........................................................ 50
SECTION 1207. Notice of Certain Corporate Action ............................ 50
SECTION 1208. Shares to be Reserved; Accounting Treatment of Consideration .. 51
SECTION 1209. Registration and Listing of Shares ............................ 51
SECTION 1210. Taxes and Charges ............................................. 52
SECTION 1211. Trustee and Conversion Agents Not Liable ...................... 52
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness ................. 52
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc ................ 53
SECTION 1303. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities .................................................... 54
SECTION 1304. No Payment When Senior Indebtedness in Default ................ 54
SECTION 1305. Payment Permitted if No Default ............................... 55
SECTION 1306. Subrogation to Rights of Holders of Senior Indebtedness ....... 55
SECTION 1307. Provisions Solely to Define Relative Rights ................... 55
SECTION 1308. Trustee to Effectuate Subordination ........................... 56
SECTION 1309. No Waiver of Subordination Provisions ......................... 56
SECTION 1310. Notice to Trustee ............................................. 57
SECTION 1311. Reliance on Judicial Order or Certificate of Liquidating
Agent ......................................................... 57
SECTION 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness ...... 58
SECTION 1313. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. ............................. 58
SECTION 1314. Article Applicable to Paying Agents ........................... 58
EXHIBITS
Exhibit A - Form of Security
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INDENTURE, dated as of April 1, 1998, between Phoenix Duff & Xxxxxx
Corporation, a corporation duly organized and validly existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, and Xxxxxx Trust and Savings
Bank, a banking corporation duly organized and existing under the laws of the
State of Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 6%
Convertible Subordinated Debentures due 2015 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
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Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such person, whether through the ownership of voting securities or
by agreement or otherwise.
"Agent" means any Security Registrar, Paying Agent, Conversion Agent,
Authenticating Agent or agent for service of notices and demands.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in Chicago, Illinois or
New York City, New York are authorized or obligated by law or executive order to
close.
"Closing Price" shall mean with respect to the shares of Common Stock
of the Company on any day, (i) the last reported sales price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange, or (ii) if the shares of Common Stock are not listed or admitted to
trading on the New York Stock Exchange, the last reported sales price regular
way, or in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, on the principal national
securities exchange on which the shares of Common Stock are listed or admitted
to trading, or (iii) if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose,
or (iv) if such prices in the over-the-counter market are not available, the
fair market value set by, or in a manner established by, the Board of Directors
in good faith.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
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"Common Stock" means the shares of the Common Stock of the Company, par
value $.01 per share, and any stock into which such Common Stock may hereinafter
be changed.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 1002.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 Attention: Indenture Trust
Division.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, 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.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in Good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" has the meaning specified in Section 1002.
"Person" means any individual, Corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" shall mean the Series A Convertible Exchangeable
Preferred Stock of the Company, par value $.01 per share, created under a
Certificate of Designation, Voting
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Powers, Preferences and Rights which was filed by the Company with the Secretary
of State of the State of Delaware on October 27, 1995.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, 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 the February 20, May 20, August 20, or November 20 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any, and
unpaid interest on (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not a claim for post-filing interest is allowed in such proceeding), fees,
charges, expenses, reimbursement and indemnification obligations, and all other
amounts payable under or in respect of, the following, whether outstanding at
the date hereof or hereafter incurred, created, assumed or guaranteed: (a)
indebtedness of the Company for money borrowed whether or not evidenced by
notes, drafts or other written obligations, (b) indebtedness of the Company
evidenced by notes payable and drafts accepted representing extensions of
credit, (c) that portion of obligations of the Company as lessee under
capitalized leases that is properly classified as a liability on the Company's
balance sheet in accordance with generally accepted accounting principles, (d)
any balance owed for all or any part of the deferred purchase price of property
or services, which purchase price is due more than six months from the date of
incurrence of the obligation in respect thereof (except any such balance that
constitutes (i) a trade payable or an accrued liability arising in the ordinary
course of business or (ii) a trade draft or note payable issued in the ordinary
course of business in connection with the purchase of goods or services) if and
to the extent such debt would appear as a liability upon the Company's balance
sheet prepared in accordance with generally accepted accounting principles, (e)
indebtedness of others of any of the kinds described in the preceding clauses
(a) through (d) assumed or guaranteed by the Company and (f) deferrals,
amendments, renewals, extensions and refundings of, and indebtedness and
obligations of a successor Person issued in exchange for or in replacement of,
indebtedness or obligations of the kinds described
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in the preceding clauses (a) through (e); provided, however, that the following
shall not constitute Senior Indebtedness: (i) any indebtedness or obligation as
to which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is expressly provided that such indebtedness or
obligation is subordinate in right of payment to all other indebtedness of the
Company not expressly subordinated to such indebtedness or obligation; (ii) any
indebtedness or obligation which by its terms refers explicitly to the
Securities issued hereunder and states that such indebtedness or obligation
shall not be senior in right of payment thereto; (iii) any indebtedness or
obligation of the Company in respect of the Securities and (iv) any indebtedness
or obligation of the Company to any Subsidiary; provided, further, that in
computing "Senior Indebtedness," there shall be excluded any particular
indebtedness if, upon or prior to the maturity thereof and at the time of
determination of such indebtedness, there shall have been deposited with a
depositary in trust money (or evidence of indebtedness if permitted by the
instrument creating such indebtedness) in the necessary amount to pay, redeem or
satisfy such indebtedness as it becomes due, and the amount so deposited shall
not be included in any computation of the assets of the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means (i) 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, or (ii) a partnership in which the Company or one of the other
Subsidiaries is a general partner. For the 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.
"Trading Day" means any day on which trading takes place (a) if the
Common Stock is then listed or admitted to trading on a national securities
exchange, on the principal national securities exchange on which the Common
Stock is then listed or admitted to trading, or (b) in the
over-the-counter-market and prices reflecting such trading are published by the
National Association of Securities Dealers Automated Quotation System.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.
Code" 77aaa-77bbbb), as amended by the Trust Indenture Reform Act of 1990 and as
in effect on the date of this Indenture.
"U.S. Government Obligations" means direct, non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the timely payment of which the full faith and credit of the United States of
America is pledged.
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"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions 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, 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 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 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 or not, in the opinion of
each such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous.
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Any such certificate or Opinion of Counsel may be based upon
certificates of public officials and, insofar as it relates to factual matters,
upon certificates or opinions of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificates or opinions 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, 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 Security.
(e) The Company or, after the occurrence of a default, the Trustee, may
set a record date for purposes of determining the identity of Holders entitled
to vote or consent to any Act by the Holders, which record date shall not be
less than fifteen days before the date of the vote or the consent. If the
Company or the Trustee, as the case may be, does not establish a record
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date for a vote or consent, such record date shall be the later of thirty days
prior to the first solicitation of such vote or consent or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 312 of the
Trust Indenture Act prior to the solicitation of such consent or vote.
SECTION 105. Notice, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. 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 his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed.
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail.
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification fur every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required or deemed to be included in this indenture by
airy of the provisions of the Trust Indenture Act, such required or deemed to be
included provision shall control.
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SECTION 108. 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 109. 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 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid. illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied.
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Securities, any
benefit or any legal or equitable right. remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding, any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium. if any) or conversion of the Securities need not be made
on such date, but may. be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last day for conversion, provided that no
interest shall accrue for the period from and after such Interest Payment Date.
Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Execution in Counterparts.
This Indenture may be executed by the parties hereto in any number of
counterparts, and by each of the parties hereto in separate counterparts, and
when so executed and delivered, each of such counterparts shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same instrument.
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SECTION 115. The Company's Obligations.
No recourse may be taken, directly or indirectly, against any
shareholder, officer, member of the Board of Directors or employee of the
Company (or of any predecessor or successor of the Company) with respect to the
Company's obligations under this Indenture or any Officers' Certificate or other
certificate or other writing delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be
in substantially the form set forth in Exhibit A, which is incorporated in and
made a part of this Indenture, 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 the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $81,575.000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 304, 305,
306, 906, 1108 or 1201.
The Securities shall be known and designated as the "6% Convertible
Subordinated Debentures due 2015" of the Company. Their Stated Maturity shall be
November 1, 2015 and they shall bear interest at the rate of 6% per annum, from
April 3, 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 on
March 10, June 10, September 10 and December 10, commencing June 10, 1998 until
the principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose; provided, however, that at
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the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be convertible as provided in Article Twelve.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations of Securities.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $25.00 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon or affixed thereto attested by its Secretary
or one of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date as of which such Securities were dated.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such securities: and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are
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issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like aggregate principal amount of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. Registrar.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities ("Security
Registrar").
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount, all as requested by the transferor.
At the option of the Holder, a Security may be exchanged for one or
more Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Security to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or
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exchange of Securities, other than exchanges pursuant to Section 304, 906 or
1108 not involving any registration of transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute, and the Trustee shall authenticate and deliver in exchange therefor, a
new Security of like tenor and principal amount and bearing a number not
contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of actual notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute, and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, direct the Trustee or Paying Agent to pay
such Security on its due date.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security 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 Securities duty issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security 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 Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been
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such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in paragraph (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, 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 paragraph provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following paragraph (b); or
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this paragraph,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the
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immediately preceding sentence, in the case of any Security which is converted,
interest whose Stated Maturity is after the date of conversion of such Security
shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of any principal of (and premium, if any)
and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security 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 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered,
shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and if so, the Trustee shall use CUSIP numbers in notices of
redemption, conversion or exchange as a convenience to Holders provided that any
such notice shall state that no representation is made as to the correctness or
accuracy of the CUSIP numbers either as printed on the Securities or as
contained in any notice of redemption, conversion or exchange and that reliance
may be placed only in the other identification numbers printed in the Securities
and any such redemption, conversion or exchange shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except for the rights, duties and
obligations of the Trustee, any Conversion Agent, any Paying Agent and the
Securities Registrar to complete their obligations under this Indenture and to
pay the Securities), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either:
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(ii) the Company, with respect to all such Securities not
(theretofore delivered to the Trustee for cancellation, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of all Securities,
money or U.S. Government Obligations or a combination thereof,
sufficient without regard to investment or reinvestment thereof to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with and such other documents and
assurances as the Trustee may reasonably request.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Holders under Section 403 and to the Trustee
under Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 614 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to clause (ii) of paragraph (a) of this
Section, the obligations of the Trustee under Section 402 and the last
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paragraph of Section 1003 shall survive. Funds deposited with the trustee
pursuant to this Section shall not be subject to the provisions of Article
Thirteen.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it in accordance with the provisions of the Securities and this
Indenture, to the payment either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium if any) and interest
for whose payment such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 401 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted shall be returned to
the Company upon Company Request.
SECTION 403. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with this Article by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article until such time as the
Trustee or any Paying Agent is permitted to apply all such money in accordance
with this Article: provided, however, that if the Company has made any payment
of principal or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payments from the money held by the Trustee or
any Paying Agent.
ARTICLE FIVE
EVENTS OF DEFAULT; REMEDIES
SECTION 501. 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
occasioned by the provisions of Article Thirteen or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
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(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with) and continuance of such default or
breach for a period of 60 days after there has been given. by registered
or certified mail, to the Company by the Trustee or the Company and the
Trustee by the Holders of at least a majority in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder: or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of 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 for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than a majority in principal amount
of the Outstanding Securities may declare the principal of all the Securities to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders) and upon any such declaration such principal
shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the
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Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on all Securities;
(ii) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities;
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission or annulment shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days; or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof;
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
borne by the Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities
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and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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 504. 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
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment
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shall, after provision for the payment of the compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel pursuant to
Section 607, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in the case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the Trustee for payment of costs and expenses of
collection, including all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses and disbursements of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
SECOND: To the payment of all Senior Indebtedness to the extent
required by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium if any) and interest on the Securities 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 mid payable on such Securities for principal (and
premium, if any) and interest, respectively; and
FOURTH: To the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section.
SECTION 507. Limitation on Suits.
Subject to Section 508, a Holder of any Security shall not have any right
to institute any suit, action or proceeding, at law or in equity or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy under or upon this Indenture, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of not less than a majority in principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to convert
such Security in accordance with Article Twelve and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture and provided further that (subject to the
provisions of Section 601) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors, the
executive committee or a trust committee of directors or Responsible
Officers of the Company shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee
in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction shall be unduly prejudicial to
the interests of Holders of the Securities not joining in the giving of
said direction, it being understood that (subject to Section 601) the
Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security, which shall require the consent of the Holder of
each Outstanding Security affected; or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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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 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit, action or proceeding for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the tiling by any party
litigant in such suit of an undertaking to pay the costs of such suit, action or
proceeding and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this Section
shall not apply to any suit, action or proceeding instituted by the Company, to
any suit, action or proceeding instituted by the Trustee, to any suit, action or
proceeding instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities, or to
any suit, action or proceeding instituted by any Holder for the enforcement of
the payment of the principal of (or premium, if any) or interest on any Security
on or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date) or for the enforcement
of the right to convert any Security in accordance with Article Twelve.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any Such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) Subject to Section 604, no provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the Trustee shall
transmit by first class mail, postage prepaid, to all Holders, as their names
and addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive
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committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601;
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem 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 and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonable
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to 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;
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(h) the Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder:
(i) the permissive rights to do things enumerated in this
Indenture shall not be construed as a duty; and
(j) except for (i) a default under Sections 501(a) or (b) hereof,
or (ii) any other event of which the Trustee has actual knowledge and
which event, with the giving of notice or the passage of time or both,
would constitute an Event of Default under the Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default
unless specifically notified in writing of such event by the Company or
the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding; as used herein, the term "actual knowledge"
means the actual fact or statement of knowing without any duty to make any
investigation with regard thereto.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. Trustee May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar, any Conversion Agent or any other Agent of the Company or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, Conversion Agent or Such
other Agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing 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);
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(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of 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 willful misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, damage, claims or expense, including taxes (other
than taxes based upon, measured by or determined by income of the
Trustee), incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
the duties imposed by this Indenture or the trusts hereunder or
performance of its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, it shall, within 90 days after ascertaining
that it has such conflicting interest, either eliminate such conflicting
interest or, unless the Trustee's duty to resign is stayed as provided in
Section 310(b) of the Trust Indenture Act, resign, and the Company shall
take prompt steps to have a successor appointed, in the manner and with
the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, the Trustee shall, within 10
days alter the expiration of such 90-day period, or, if the Trustee's duty
is stayed, after the end of such stay, transmit by mail to all Holders, as
their names and addresses appear in the Security Register, and to the
Company notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest if the Trustee has a conflict within the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
This Indenture shall always have a Trustee who satisfies the requirements
of Section 310(a)(1) of the Trust Indenture Act. There shall at all times be a
Trustee hereunder which shall be a Corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority. Neither the Company nor any other obligor upon the Securities or any
person directly or indirectly controlling, controlled by or under common control
with the Company or such obligor shall be eligible to serve as Trustee under
this Indenture. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus
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of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a
bona tide Holder of a Security for at least six months; or
(ii) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any reason, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee and
shall comply with the applicable requirements of Section 611. 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 Securities 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
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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 Security for at least
six months may, subject to Section 514, 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 all Holders as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities 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 Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
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SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311 of the Trust Indenture Act.
SECTION 614. 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 Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 306, and Securities 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. Whenever reference is made in this Indenture to the authentication
and delivery of Securities 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 and a certificate
of authentication executed 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, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal, state or District of Columbia authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any tine an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days' 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 30 days' written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. 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
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Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned Indenture.
Xxxxxx Trust and Savings Bank.
As Trustee
Dated: ________________________ _______________________________
By ____________________________
As Authenticating Agent
By ____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) quarterly, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 15
5 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;
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provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. 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 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either:
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information provided in clause (i) above, the Trustee shall, upon the written
request of such applicants, mail to each Holder whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
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(c) Every Holder of Securities, 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 any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of material pursuant to a request made under Section 70(b).
SECTION 703. Reports by Trustee.
The Trustee shall provide the reports required by Section 313 of the Trust
Indenture Act to the Persons and in the manner specified in such Section 313.
The Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended: or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations; and
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease all or substantially all of its assets
as an entirety to any Person in any transaction in which the Company is not the
continuing or surviving entity unless:
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(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed and shall have
provided for conversion rights in accordance with Section 1206:
(b) 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: and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction. such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Corporation Substituted.
Upon any consolidation of the Company with or merger of the Company into any
other Person or any conveyance, transfer or lease of the assets of the Company
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities for any obligations or covenants arising after the
date the successor Person has been named as the Company herein.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of holders.
Without prior notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company pursuant
to Section 801 hereof and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 1206; or
(4) to add additional Events of Default; or
(5) 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 Indenture and the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611; or
(6) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, to
eliminate any conflict between the terms of this Indenture or the Securities
and the Trust Indenture Act or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture; provided such other
provisions shall not adversely affect the interests of the Holders of
Outstanding Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, 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 Security affected thereby:
(a) change the Stated Maturity of the principal of or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof,
or change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect the right to convert any Security as
provided in Article Twelve (except as permitted by Section 901), or modify,
the provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders; or
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(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture; or
(c) modify any of the provisions of this Section. Section 508. Section
513 or Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental Indenture. but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting any additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Execution of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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SECTION 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall mail to the
Holders of Securities a notice to their addresses as they appear on the Security
Register, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to' mail such notice or any defect
therein, shall not, however, in any way impair or effect the validity of any
such supplemental indenture.
SECTION 908. Revocation and Effect of Consents.
Subject to this Indenture, each amendment, waiver or instrument evidencing
other action shall become effective in accordance with its terms. Until an
amendment, waiver or other action becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder even if notation of the
consent is not made on any Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the notice of revocation before the date the amendment.
waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those persons who were Holders at such record
date (or their duly designated proxies) and only those persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No consent shall be valid or effective for more than 90 days after
such record date unless consent from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment. waiver or other action becomes effective, pursuant to
Section 513, Section 901, Section 902 or Section 1007, as the case may be, it
shall bind every Holder of Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency where Securities may be
presented or surrendered for payment ("Paying Agent"), where Securities may be
surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion ("Conversion Agent") and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. The Trustee
is hereby initially appointed Paying Agent, Conversion Agent and Agent for
service of notices and demands.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its Agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to
each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium, or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
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(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
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 any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Subject to any applicable abandoned property law, 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 (and premium, if any) or interest on any Security
and remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
SECTION 1005. Limitation on Dividends and Other Distributions.
The Company will not declare or pay any dividends or make any distribution
to holders of its capital stock (other than dividends or distributions payable
in capital stock of the Company), or purchase, redeem or otherwise acquire or
retire for value any of its capital stock or permit any Subsidiary to purchase,
redeem or otherwise acquire or retire for value any of the Company's capital
stock if at the time of such action an Event of Default has occurred and is
continuing or would exist immediately after giving effect to such action.
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SECTION 1006. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1004 and 1005, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004 and 1005, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities 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 and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a whole or
from time to time in part, at any time on or after November 1, 2000 at the
Redemption Price specified in the form of Security attached hereto as Exhibit A
together with accrued interest through the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of any of the Securities, the Company shall, at least 30
days but not more than 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
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SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed pursuant to Section 1101,
the particular Securities to be redeemed shall be selected pro rata or by lot by
the Trustee, from the outstanding Securities not previously called for
redemption, and which may provide for the selection for redemption of portions
(equal to $25.00 or any integral multiple thereof), of the principal amount of
Securities of a denomination larger than $25.00.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 15 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register. Any notice given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to Live notice or any detect in the notice to the
Holder of any Security designated for redemption shall not affect the validity
of the proceedings for the redemption of any other Security.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
(d) that at the close of business on the Redemption Date the Redemption
Price will become due and payable upon the surrender of each such Security
to be redeemed and that interest thereon will cease to accrue on and after
said time;
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(e) the conversion rate, the date on which the right to convert the
principal of the Securities to be redeemed will terminate and the place or
places where such Securities may be surrendered for conversion; and
(f) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any moneys deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to the right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, at the close of business on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
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SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at an
office or agency of the Company designated for that purpose pursuant to Section
1002 (with, if the Company or Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Right of Conversion.
The Holder of any Security or Securities shall have the right at any time
prior to maturity, at his option, to convert, subject to the terms and
provisions of this Article, the principal of any such Security or Securities (or
any portion of the principal thereof which is $25.00 or an integral multiple of
$25.00) into fully paid and nonassessable shares of Common Stock of the Company
at the rate of 3.11 shares of Common Stock for each $25.00 principal amount of
Securities or, in case an adjustment therein has taken place pursuant to the
provisions of Section 1204, then at the rate as so adjusted (except that with
respect to any Security or Securities, or any such portion, which shall be
called for redemption, such right shall terminate, except as provided in the
last paragraph of Section 1202, at the close of business on the Redemption Date
for such Security or Securities or portion unless the Company shall default in
payment due upon redemption thereof). Such right shall be exercised by the
surrender of the Security or Securities, the principal of which is so to be
converted, to the Company at any time during regular business hours at any
office or agency to be maintained by it in accordance with the provisions of
Section 1002, accompanied by written notice that the Holder elects to convert
such Security or Securities or any portion thereof and specifying the name or
names (with address) in which a certificate or certificates for Common Stock are
to be issued and (if so required by the Company or the Trustee) by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee, duly executed by the Holder or his attorney, duly authorized in
writing and transfer tax stamps or funds therefor, if required pursuant to
Section 1210. For convenience, the conversion of all or a portion, as the case
may be, of the principal of any Security into the Common Stock of the Company is
hereinafter sometimes referred to as the conversion of such Security. All
Securities surrendered for conversion shall, if surrendered to the Company or
any conversion agent, be delivered to the Trustee for cancellation and cancelled
by it or, if surrendered to the Trustee, shall be cancelled by it; and, subject
to the next succeeding sentence, no Securities shall be issued in lieu thereof.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of
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the Company, a new Security or Securities of authorized denominations in an
aggregate principal amount equal to the unconverted portion of the principal
amount of such Security.
SECTION 1202. Issuance of Common Stock; Time of Conversion
As promptly as practicable after the surrender, as herein provided, of any
Security or Securities for conversion, the Company shall deliver or cause to be
delivered at any office or agency to be maintained by it in accordance with the
provisions of Section 1002 to or upon the written order of the Holder of the
Security or Securities so surrendered a certificate or certificates representing
the number of fully paid and nonassessable shares of Common Stock of the Company
into which such Security or Securities (or portion thereof) may be converted in
accordance with the provisions of this Article. Subject to the following
provisions of this paragraph and of Section 1204, such conversion shall be
deemed to have been made as of the close of business on the date that such
Security or Securities shall have been surrendered in satisfactory form for
conversion, so that the rights of the Holder as a Holder shall cease with
respect to such Security or Securities (or the portion thereof being converted)
at such time, and the Person or Persons entitled to receive the shares of Common
Stock deliverable upon conversion of such Security or Securities (or portion
thereof) shall be treated for all purposes as having become the record holder or
holders of such shares of Common Stock at such time, and such conversion shall
be at the conversion rate in effect at such time; provided, however that no such
surrender on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock deliverable upon such conversion as the
record holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes as of the close of business on the next succeeding day on which
such stock transfer books are open, and such conversion shall be deemed to have
been made at, and shall be made at the conversion rate in effect at, such time
on such next succeeding day.
If the last day for the exercise of the conversion right shall not be a
Business Day, then such conversion right may be exercised on the next succeeding
Business Day.
SECTION 1203. No Adjustments in Respect of Interest or Dividends.
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date shall (except in the case of Securities or
portions thereof which have been called for redemption on a Redemption Date
during such period) be accompanied by payment in funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion. Except as
provided in the preceding sentence and subject to the last paragraph of Section
307, no payment or adjustment shall be made upon any conversion on account of
any interest accrued on the Securities surrendered for conversion or on account
of any dividends on the shares of Common Stock issued upon conversion.
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SECTION 1204. Adjustment of Conversion Rate.
The number of shares of Common Stock and number and amount of any other
securities and property as hereinafter provided into which each $25.00 principal
amount of Securities is convertible (the number of shares of Common Stock
issuable at any time, giving effect to the last prior adjustment pursuant to
this Section, if any, in exchange for $5.00 principal amount of Securities being
hereinafter called the "conversion rate") shall be subject to adjustment from
time to time as follows:
(a) In case the Company shall pay or make a dividend or other distribution
on any class or series of its capital stock in shares of Common Stock, the
conversion rate then in effect at the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by multiplying such conversion
rate by a fraction of which the numerator shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the total number of shares constituting such dividend
or other distribution and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination, such increase to become effective immediately after the opening
of business on the day following the date fixed for such determination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (determined as provided in paragraph (f) of
this Section) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the conversion rate
then in effect at the opening of business on the day following the date fixed
for such determination shall be increased by multiplying such conversion rate by
a fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the
subscription price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. In the event that all of
the shares of Common Stock subject to such rights or warrants have not been
issued when such rights or warrants expire, then the conversion rate shall
promptly be readjusted to the conversion rate which would then be in effect had
the adjustment upon the issuance of such rights or warrants been made on the
basis of the actual number of shares of Common Stock issued upon the exercise of
such rights or warrants. For the purposes of this paragraph (b), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
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(c) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares, the conversion rate then in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares, the conversion rate then in effect at the opening of business on the
day following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute to all
or substantially all holders of shares of Common Stock evidences of indebtedness
or assets (including securities, but excluding any (i) rights or warrants
referred to in paragraph (b) of this Section, (ii) any dividend or distribution
not prohibited by Section 1005 hereof and (iii) any dividend or distribution
referred to in paragraph (a) of this Section), the conversion rate shall be
increased so that the same shall equal the rate determined by multiplying the
conversion rate then in effect immediately prior to the close of business on the
day fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share of Common Stock (determined as provided in paragraph (f) of this
Section) on the date fixed for such determination and the denominator shall be
such current market price per share of Common Stock less the then fair market
value as determined by the Board of Directors of the Company (whose
determination shall be conclusive and described in a resolution of the Board of
Directors) of the portion of the assets or evidences of indebtedness so
distributed allocable to one share of Common Stock, such adjustment to become
effective immediately after the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
distribution.
(e) In case the shares of Common Stock shall be changed into the same or a
different number of shares of any class or classes of stock, whether by capital
reorganization, reclassification, or otherwise (other than a subdivision or
combination of shares or a stock dividend described in paragraph (a) or
paragraph (c) of this Section, or a consolidation, merger or sale of assets
described in Section 1206), then and in each such event Holders of Securities
shall have the right thereafter to convert such Securities into the kind and
amount of shares of stock and other securities and property receivable upon such
reorganization, reclassification or other change, by holders of the number of
shares of Common Stock into which such Securities might have been converted
immediately prior to such reorganization, reclassification or change.
(f) For the purpose of any computation under paragraphs (b) and (d) of this
Section, the current market price per share of common stock on any date shall be
deemed to be the average of the daily Closing Prices for thirty (30) consecutive
Trading Days commencing forty-five (45) days before the date in question.
(g) No adjustment in the conversion rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(g)) would require an increase or decrease of at least 1% in such rate;
provided, however, that the Company may make any such adjustment at its
election; and provided, further, that any adjustments which by reason of this
paragraph (g) are not required to be made shall be carried forward and taken
into account in
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any subsequent adjustment. All calculations under this Article shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(h) The Company may, but shall not be required to, make such increases in
the conversion rate, in addition to those required by paragraphs (a), (b), (c)
and (d) of this Section, as the Company's Board of Directors considers to be
advisable in order to avoid or diminish any income tax to any holders of shares
of Common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons. The Company's
Board of Directors shall have the power to resolve any ambiguity or correct any
error in the adjustments made pursuant to this Section and its actions in so
doing shall be final and conclusive.
(i) Whenever the conversion rate is adjusted as herein provided:
(i) the Company shall compute the adjusted conversion rate and shall
prepare a certificate signed by the President and Chief Financial Officer of the
Company setting forth the adjusted conversion rate and showing in reasonable
detail the facts upon which such determination is based and the computation
thereof, and such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities; and
(ii) a notice stating that the conversion rate has been adjusted and
setting forth the adjusted conversion rate shall as soon as practicable be
mailed by the Company to all Holders of Securities at their last addresses as
they shall appear on the Security Register and to the Trustee.
(j) In the event that at any time, as a result of any adjustment made
pursuant to this Article, the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of the Company other than
shares of Common Stock or to receive any other securities, the number of such
other shares or securities so receivable upon conversion of any Security shall
be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions contained in this Article with
respect to the Common Stock.
SECTION 1205. No Fractional Shares.
No fractional shares or script representing fractional shares of Common
Stock shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares issuable upon conversion thereof shall be computed on the basis
of the aggregate principal amount of the Securities (or specified portions
thereof), so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to such fraction multiplied by the current
market price per share of Common Stock (determined as provided in paragraph (f)
of Section 1204) on the day of conversion.
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SECTION 1206. Conversion in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other Person, or in case of any merger of another Person into the
Company (other than a consolidation or merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, to convert such Security into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by a holder of the number of shares of Common Stock of the
Company into which such Security would have been converted immediately prior to
such consolidation, merger, sale or transfer. Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article. The above provisions of this
Section shall similarly apply to successive consolidations, mergers, sales or
transfers.
SECTION 1207. Notice of Certain Corporate Action.
(a) In case:
(i) the Company shall (A) declare any dividend (or any other
distribution) on shares of its Common Stock other than (1) a dividend payable in
shares of Common Stock or (2) a dividend payable in cash out of its retained
earnings other than any special or nonrecurring or other extraordinary dividend
or (b) declare or authorize a redemption or repurchase of in excess of 25% of
the then outstanding shares of Common Stock; or
(ii) the Company shall authorize the granting to the holders of its
shares of Common Stock of rights or warrants entitling them to subscribe for or
purchase any shares of capital stock of the Company or of any other rights or
warrants; or
(iii) of any reclassification of the shares of Common Stock of the
Company, or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company, or of
any compulsory share exchange whereby the Common Stock will be converted into
cash or other securities or property; or
(iv) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then the company shall cause to be filed with the Trustee and to be mailed to
each Holder of Securities at his/her last address appearing on the Security
Register, as promptly as possible but in any event at least fifteen (15) days
prior to the applicable record date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption or granting of rights or warrants, or, if a record is
not to be taken, the
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date as of which the holders of shares of Common Stock of record to be entitled
to such dividend, distribution, redemption or granting of 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. Such notice shall also state whether
such transaction will result in any adjustment in the conversion rate applicable
to the Securities and, if so, shall state what the adjusted conversion rate will
be and when it will become effective. Neither the failure to give the notice
required by this Section, nor any defect therein, to any particular Holder shall
affect the sufficiency of the notice or the legality or validity of any such
dividend, distribution, redemption, right, warrant, reclassification,
consolidation, merger, sale, transfer, share exchange, liquidation, dissolution
or winding-up, or the vote on any action authorizing such with respect to the
other Holders.
(b) In case the Company or any Affiliate of the Company shall propose to
engage in a "Rule 13e-3 Transaction" as defined in Rule 13e-3 promulgated under
the Securities Exchange Act of 1934, as amended, the Company shall, no later
than the date on which any information with respect to such Rule 13e-3
Transaction is first required to be given to the Commission or any other person
pursuant to such Rule 13e-3, cause to be mailed to all Holders at their last
addresses as they shall appear on the Security Register, a copy of all
information required to be given to the Commission or such other person pursuant
to such Rule 13e-3. The information required to be given under this paragraph
shall be in addition to and not in lieu of any other information required to be
given by the Company pursuant to this Section.
SECTION 1208. Shares to be Reserved; Accounting Treatment of Consideration.
The Company covenants that it will at all times reserve and keep available
out of its authorized Common Stock, free from preemptive rights solely for the
purpose of issue upon conversion of Securities as herein provided, such number
of shares of Common Stock as shall then be issuable upon the conversion of all
outstanding Securities. The Company covenants that all shares of Common Stock
which shall be so issuable shall, when issued, be duly and validly issued and
fully paid and nonassessable.
The Company covenants that, upon conversion of Securities as herein
provided, there will be credited to the Common Stock capital account from the
consideration for which the shares of Common Stock issuable upon such conversion
are issued an amount per share of Common Stock so issued as determined by the
Board of Directors, which amount shall not be less than the amount required by
law and by the Company's articles of incorporation, as amended, as in effect on
the date of such conversion. For the purposes of this covenant the principal
amount of the Securities converted, less any cash paid in respect of fractional
share interests upon such conversion, shall be deemed to be the amount of
consideration for which the shares of Common Stock issuable upon such conversion
are issued.
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SECTION 1209. Registration and Listing of Shares.
The Company covenants that if any shares of Common Stock required to be
reserved for purposes of conversion of Securities hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be issued upon conversion, the Company will in good faith
and as expeditiously as possible endeavor to cause such shares to be duly
registered or approved, as the case may be. The Company further covenants that
so long as the Common Stock of the Company is listed on the New York Stock
Exchange or any other national securities exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed on such exchange,
upon official notice of issuance, all shares of Common Stock issuable upon
conversion of Securities.
SECTION 1210. Taxes and Charges.
The issuance of certificates for shares of Common Stock upon the conversion
of Securities shall be made without charge to the converting Holder of
Securities for such certificates or for any tax in respect of the issuance of
such certificates or the securities represented thereby, and such certificates
shall be issued in the respective names of; or in such names as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificates unless or until the Person
or Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 1211. Trustee and Conversion Agents Not Liable.
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the conversion rate, 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 or amount) of any shares of Common Stock or of any securities or cash
or other property which may at any time be issued or delivered upon the
conversion of any Security, or 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 Security for the purpose of conversion, or, subject to
Section 601, to comply with any of the covenants of the Company contained in
this Article.
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security by his
acceptance thereof likewise covenants and agrees that, to the extent and in the
manner hereinafter set forth in this Article, the indebtedness represented by
the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its assets, or (b)
any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshaling of
assets and liabilities of the Company, then, and in any such event, the holders
of Senior Indebtedness shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Indebtedness, or
provisions shall be made for such payment in money or money's worth, before the
Holders of the Securities are entitled to receive any payment on account of the
redemption price or principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness 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
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section,
the Trustee or the Holder of any Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee, or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
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For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is subordinated
at least to the extent provided in this Article with respect to the Securities
to the payment of all Senior Indebtedness which may at the time be outstanding;
provided, however, that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided in Article Eight shall not
be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article Eight.
SECTION 1303. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all such Senior Indebtedness, or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
redemption price or principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section, and if such facts shall then 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 for
the benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with respect
to which Section 1302 would be applicable.
SECTION 1304. No Payment When Senior Indebtedness in Default.
In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Indebtedness beyond
any applicable grace period with respect thereto, or in the event that any event
of default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable,
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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 in the event any judicial proceeding shall be pending with respect
to any such default in payment or event of default, then no payment (including
any payment which may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the Securities)
shall be made by the Company on account of redemption price or principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, and if such fact shall then 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 for the
benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with respect
to which Section 1302 would be applicable.
SECTION 1305. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1302 or under the conditions
described in Section 1303 or 1304, from making payments at any time of
redemption price or principal of (and premium, if any) or interest on the
Securities, (b) the application by the Trustee or the retention thereof by the
Holders of any money deposited with it hereunder to the payment of or on account
of the redemption price or principal of (and premium, if any) or interest on the
Securities if, at the time of such application, the Trustee did not have
knowledge that such payment would have been prohibited by the provisions of this
Article, or (c) the conversion of the Securities.
SECTION 1306. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the
Securities.
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SECTION 1307. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of Senior Indebtedness, on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms and which, subject to the rights under this Article of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company, or is intended to or shall affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1308. Trustee to Effective Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, without
limitation, to execute, verify, deliver and file any proofs of claim which any
holder of Senior Indebtedness may at any time require in order to prove and
realize upon any rights or claims pertaining to the Securities and to effectuate
the full benefit of the subordination contained here. Upon failure of the
Trustee so to do, any such holder of Senior Indebtedness shall be deemed to be
irrevocably appointed the agent and attorney-in-fact of the Holders to execute,
verify, deliver and file such proofs of claim.
SECTION 1309. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time and 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 any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness: do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or
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supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any Person liable in any
manner for the collection of Senior Indebtedness; and (d) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 1310. 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 Securities pursuant to the provisions of this Article.
Failure to give such notice shall not affect the subordination of the Securities
to Senior Indebtedness. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee or agent therefor: and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received, at least three Business Days prior
to the date upon which by the terms hereof any such money may become payable for
any purpose (including without limitation, the payment of the redemption price
or principal of; and premium, if any, or interest on any Security), the notice
with respect to such money provided for in this Section, 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
such money was received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days prior to such date. The
Trustee shall not be charged with knowledge of the curing of any default with
respect to the Senior Indebtedness or of the elimination of the act or condition
preventing any payment under this Article unless and until two Business Days
after the Trustee shall have received a notice from the party which originally
notified the Trustee of the occurrence of a default with respect to the Senior
Indebtedness.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely
conclusively on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf
of such holder) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to give notice hereunder or to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
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SECTION 1311. Reliance on Judicial Under or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation. reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pursuant thereto or to this Article.
SECTION 1312. Trustee loot Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash. property or securities to which any holders
of Senior indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1313. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of: or payments to, the
Trustee or any predecessor Trustee under or pursuant to Section 607.
SECTION 1314. Article Applicable to Paying Agents
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1313 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
PHOENIX DUFF & XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President &
Chief Financial Officer
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By: /s/ X. Xxxxxxxxx
-----------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
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EXHIBIT A
[FORM OF FACE]
PHOENIX DUFF & XXXXXX CORPORATION
6% CONVERTIBLE SUBORDINATED
DEBENTURE DUE 2015
No. ________________ $ ___________
PHOENIX DUFF & XXXXXX CORPORATION, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______ , or registered assigns, the
principal sum of Dollars on November 1, 2015, and to pay interest thereon from
April 3, 1998 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly on March 10, June 10, September 10
and December 10, in each year, commencing June 10, 1998 at the rate of 6% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the February 20, May 20, August 20 or November 20 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will 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 Security (or one or more Predecessor Securities) 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 Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of (and premium, if
any) and interest on this Security will be made at the office or agency of the
Company maintained for that purpose in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. The Indenture includes
limitations on the right of the Holder to institute a proceeding, judicial or
otherwise, with respect to the Indenture, for the appointment of a receiver or
trustee, or for any other remedy under the Indenture.
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Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
will 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 Security to be duly
executed in its name by the manual or facsimile signature of its Chairman of the
Board or its President or any Vice President and has caused a facsimile of the
seal of the Company to be place on this Security.
PHOENIX DUFF & XXXXXX CORPORATION
By: ___________________________________
[SEAL]
Attest:
_______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: ________________________ Xxxxxx Trust and Savings Bank
as Trustee
By: ___________________________________
Authorized Officer
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[FORM OF REVERSE]
This Security is one of a duly authorized issue of Securities of the
Company designated as its 6% Convertible Subordinated Debentures due 2015
(herein called the "Securities"), limited in aggregate principal amount to
$81,575,000, issued and to be issued under an Indenture, dated as of April 1,
1998, (herein called the "Indenture"), between the Company and Xxxxxx Trust and
Savings Bank, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Subject to the provisions of the Indenture, the Holder hereon has the
right, at his option, at any time prior to maturity, to convert the principal
amount of this Security (or any portion of the principal amount hereof which is
an integral multiple of $25.00) into fully paid and nonassessable shares of
Common Stock of the Company at the conversion rate of 3.11 shares of Common
Stock for each $25.00 principal amount of Securities, subject to such
adjustment, if any, of the conversion rate and the securities or other property
issuable upon conversion as may be required by the provisions of the Indenture
(except that, in case this Security (or any portion hereof) shall be called for
redemption before maturity, such right shall terminate at the close of business
on the Redemption Date for this Security (or such portion hereon, unless in any
such case the Company shall default in payment due upon such redemption), but
only upon surrender of this Security for the purpose of such conversion to the
Company at the designated office or agency of the Company for such purpose
pursuant to the provisions of the Indenture, accompanied by written notice that
the Holder elects to convert this Security or any portion hereof and specifying
the name or names (with address or addresses) in which a certificate or
certificates for shares of Common Stock are to be issued and (if so required by
the Company or the Trustee) by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by the
registered Holder or his duly authorized legal representative and transfer tax
stamps or funds therefor, if required pursuant to the provisions of the
Indenture and, in case such surrender shall be made during the period from the
close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date (unless this Security or the portion
thereof being converted has been called for redemption on a Redemption Date
during such period), also accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted. Subject to the
aforesaid requirement with respect to payment in the event of conversion after
the close of business on a Regular Record Date, no adjustment is to be made on
conversion for interest accrued hereon or for dividends on shares of Common
Stock issued on conversion. No fractional shares are issuable upon any
conversion, but in lieu thereof the Company shall pay therefor in cash as
provided in the Indenture.
The Securities are subject to redemption upon not less than 15 nor
more than 60 days' notice by first class mail, postage prepaid, at any time on
or after November 1, 2000 as a whole or from time to time in part, at the
election of the Company, at a Redemption Price equal to 100% of the principal
amount, together in the case of any such redemption with accrued interest
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to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption or conversion of this Security in part only,
a new Security or Securities for the unredeemed or unconverted portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, or in case of any merger of another Person into
the Company (other than a consolidation or merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), or in case of any sale or transfer of all or
substantially all of the assets of the Company, the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right thereafter, to convert such Security into the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of
the Company into which such Security would have been converted immediately prior
to such consolidation, merger, sale or transfer. Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in the Indenture.
The indebtedness evidenced by the Securities is, to the extent and in
the manner provided in the Indenture, expressly subordinate and subject in right
of payment to the prior payment in full of any Senior Indebtedness of the
Company or provision for such payment, whether outstanding at the date of the
Indenture or thereafter incurred, and each Holder of this Security, by his
acceptance hereof, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate such subordination and
appoints the Trustee his attorney-In-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security
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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
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $25.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any 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 Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings, assigned to them in the Indenture.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________
___________________________________ , agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: _____________________
YOUR SIGNATURE: ___________________________
(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee: ________________________
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CONVERSION NOTICE
To convert this Security into shares of Common Stock of the Company, check the
box:
[ ]
To convert only part of this Security, state the principal amount to be
converted (which must be minimum of $25.00 or any multiple thereof):
If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type other person's name, address and zip code)
Date: ________________________
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Your Signature: _________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed By: _____________________________
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