EXHIBIT 4.2
INDENTURE, dated as of October 1, 1997 between Xxxxx USA, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 0000 Xxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx, 00000, and Bankers Trust Company, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of 63,000
Shares of 11 1/2% of Senior Cumulative Exchangeable Preferred Stock (the
"Exchangeable Preferred Stock") which, subject to certain conditions, is
exchangeable for the Company's 11 1/2% Subordinated Exchange Debentures due 2009
(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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article 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, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean
such accounting principles as are generally accepted and consistently
applied in the United States which are in effect on the date of this
Indenture; 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.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"AOC Payment" means all payments made to AOC Limited Partnership, a
limited partnership organized under the laws of the State of Missouri,
constituting "Additional Redemption Consideration" required to be paid by the
Company pursuant to Section 2.4 of the Stock Purchase and Redemption Agreement.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including a consolidation or merger or other sale of any such
Restricted Subsidiaries with, into or to another Person in a transaction in
which such Restricted Subsidiary ceases to be a Restricted Subsidiary, but
excluding a disposition by a Restricted Subsidiary of such Person to such Person
or a Wholly Owned Restricted Subsidiary of such Person or by such Person to a
Wholly Owned Restricted Subsidiary of such Person) of (i) shares of Capital
Stock (other than directors' qualifying shares) or other ownership interests of
a Restricted Subsidiary of such Person, (ii) substantially all of the assets of
such Person or any of its Restricted Subsidiaries representing a division or
line of business or (iii) other assets or rights of such Person or any of its
Restricted Subsidiaries outside of the ordinary course of business, which in the
case of either clause (i), (ii) or (iii), whether in a single transaction or a
series of related transactions, result in Net Available Proceeds in excess of
$10 million; provided that (x) any transfer, conveyance, sale, lease or other
disposition of assets securing the Credit Agreement in connection with the
enforcement of the security interests therein and (y) any sale of crude oil
pursuant to the contracts governing the Gulf Transaction shall not be deemed an
Asset Disposition hereunder.
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"Asset Disposition Trigger Date" has the meaning as specified in
Section 9.18.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 5.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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 set forth in an Officers' Certificate delivered to the
Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum
of (i) 95% of the accounts receivable owned by the Company and its Restricted
Subsidiaries (excluding any accounts receivable from Restricted Subsidiaries and
any accounts receivable that are more than 90 days past due) as of such date,
plus (ii) 90% of the market value of inventory owned by the Company and its
Restricted Subsidiaries as of such date, plus (iii) 100% of the cash and Cash
Equivalents owned by the Company and its Restricted Subsidiaries as of such date
that are, as of such date, held in one or more separate accounts under the
direct control of the agent bank under the Credit Agreement and that are as of
such date pledged to secure working capital borrowings under the Credit
Agreement, minus (iv) the principal amount of borrowings outstanding as of such
date under the Credit Agreement to the extent that the amount of such borrowings
exceeds the sum of clauses (i) and (ii) above, all of the foregoing calculated
on a consolidated basis in accordance with GAAP.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, City of New York, are authorized or obligated by law, regulation or
executive order to close.
"Capital Lease" means, at the time any determination thereof is to
be made, any lease of property, real or personal or mixed, in respect of which
the present value of the minimum rental commitment would be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"Capital Lease" means, at the time any determination thereof is to
be made, any lease of property, real or personal or mixed, in respect of which
the present value of the minimum rental commitment would be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"Capitalized Lease Obligation" of any Person means any lease of any
property (whether real, personal or mixed) by such Person as lessee which, in
conformity with GAAP, is required to be accounted for as a Capital Lease on the
balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of any association or business entity, any and all
shares, interests, participations, rights or
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other equivalents (however designated) of corporate stock and (iii) in the case
of a partnership, partnership interests (whether general or limited).
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof, (iii) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500 million and a Xxxxx Bank Watch
Rating of "B" or better, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses (ii)
and (iii) entered into with any financial institution meeting the qualifications
specified in clause (iii) above and (v) commercial paper having the highest
rating obtainable from Xxxxx'x or S&P and, in each case, maturing within six
months after the date of acquisition.
"Change of Control" means any transaction the result of which is
that any Person (an "Acquiring Person") other than TrizecHahn, or a Person, a
majority of whose voting equity is owned by TrizecHahn, becomes the Beneficial
Owner, directly or indirectly, of shares of stock of the Company, Xxxxx or any
Subsidiary of the Company or TrizecHahn that owns, directly or indirectly, any
equity interest in Xxxxx, as the case may be, entitling such Acquiring Person to
exercise 50% or more of the total voting power of all classes of stock of the
Company, Xxxxx or such Subsidiary, as the case may be, entitled to vote in
elections of directors. The term "Beneficial Owner" shall be determined in
accordance with Rule 13d-3 under the Exchange Act.
"Change of Control Triggering Event" means the occurrence of a Change
of Control on or after October 1, 2005.
"Chevron Payment" means that certain contingent payment obligation
of the Company to Chevron U.S.A. Inc. based on industry refining margins and the
volume of refined oil products produced at the Port Xxxxxx Refinery over a five-
year period, pursuant to Section 3.1(d) of the Asset Purchase Agreement, dated
as of August 18, 1994, between the Company and Chevron U.S.A. Inc., as amended.
"Xxxxx" means Xxxxx Refining & Marketing, Inc., a Delaware corporation
and a Wholly Owned Subsidiary of the Company.
"Xxxxx Credit Agreement" means that certain Amended and Restated
Credit Agreement, dated as of April 19, 1995, by and among Xxxxx and the
financial institutions party thereto, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
"Closing Date" means the date on which the closing of the sale of the
Exchangeable Preferred Stock occurs.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the
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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.
"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 Vice
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.
"Consolidated Adjusted Net Worth" of any Person means the total
amount of consolidated stockholder's equity (par value plus additional paid-in
capital plus retained earnings or minus accumulated deficit) of such Person as
reflected on the consolidated balance sheet of such Person and its Restricted
Subsidiaries for the Quarter for which such determination is made, after
excluding (to the extent otherwise included therein and without duplication) the
following (the amount of such stockholder's equity and deductions therefrom to
be computed, except as noted below, in accordance with GAAP consistently
applied): (i) any amount receivable but not paid from sales of Capital Stock of
such Person or its Restricted Subsidiaries determined on a consolidated basis;
(ii) any revaluation or other write-up in book value of assets subsequent to the
date hereof (other than write-ups of oil inventory previously written down and
other than revaluations or write-ups upon the acquisition of assets acquired in
a transaction to be accounted for by purchase accounting under GAAP); (iii)
treasury stock; (iv) an amount equal to the excess, if any, of the amount
reflected on the books and records of such Person or its Restricted Subsidiaries
for the securities of any Person which is not a Restricted Subsidiary of such
Person over the lesser of cost or market value (as determined in good faith by
the Board of Directors of such Person or such Restricted Subsidiary); (v)
Disqualified Capital Stock; (vi) equity securities of such Person or its
Restricted Subsidiaries which are not Disqualified Capital Stock but which are
exchangeable for or convertible into debt securities of such Person or such
Restricted Subsidiary, as the case may be, other than at the option of such
Person or such Restricted Subsidiary except to the extent that the exchange or
conversion rights in such other equity securities cannot, under any
circumstances, be exercised prior to Maturity; and (vii) the cumulative foreign
currency translation adjustment, if any.
"Consolidated Net Operating Income" means, when used with reference
to any Person, for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP, provided that (i) the Net Income of any
Person which is not a Subsidiary of such Person or is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid to such Person or its Restricted
Subsidiaries, (ii) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the Company or one of its Subsidiaries,
(iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iv) extraordinary gains and losses and gains and losses from the sale
of assets outside the ordinary course of such Person's business shall be
excluded, (v) the cumulative effect of changes in
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accounting principles in the year of adoption of such changes shall be excluded
and (vi) the tax effect of any of the items described in clauses (i) through (v)
above shall be excluded.
"Consolidated Net Tangible Assets" of a Person means the
consolidated total assets of such Person and its Restricted Subsidiaries
determined in accordance with GAAP, less the sum of (i) all current liabilities
and current liability items, and (ii) all goodwill, trade names, trademarks,
patents, organization expense, unamortized debt discount and expense and other
similar intangibles properly classified as intangibles in accordance with GAAP.
"Consolidated Operating Cash Flow" means with respect to any Person,
Consolidated Net Operating Income of such Person and its Restricted Subsidiaries
without giving effect to gains and losses on securities transactions (net of
related taxes) for the period described below, increased by the sum of (i)
consolidated Fixed Charges of such Person and its Restricted Subsidiaries which
reduced Consolidated Net Operating Income for such period, (ii) consolidated
income tax expense (net of taxes relating to gains and losses on securities
transactions) of such Person and its Restricted Subsidiaries which reduced
Consolidated Net Operating Income for such period, (iii) consolidated
depreciation and amortization expense (including amortization of purchase
accounting adjustments) of such Person and its Restricted Subsidiaries and other
noncash items to the extent any of which reduced Consolidated Net Operating
Income for such period, less noncash items which increased Consolidated Net
Operating Income for such period, all as determined for such Person and its
consolidated Restricted Subsidiaries in accordance with GAAP for the four full
Quarters for which financial information in respect thereof is available
immediately prior to the Transaction Date.
"Consolidated Operating Cash Flow Ratio" means, with respect to any
Person, the ratio of (i) Consolidated Operating Cash Flow of such Person and its
Restricted Subsidiaries for the four Quarters for which financial information in
respect thereof is available immediately prior to the Transaction Date to (ii)
the aggregate Fixed Charges and Preferred Stock Dividends of such Person and its
Restricted Subsidiaries for such four Quarters, such Fixed Charges and Preferred
Stock Dividends to be calculated on the basis of the amount of the Indebtedness,
Capitalized Lease Obligations and Preferred Stock of such Person and its
Restricted Subsidiaries outstanding on the Transaction Date and assuming the
continuation of market interest rate levels prevailing on the Transaction Date
in any calculation of interest rates in respect of floating interest rate
obligations; provided, however, that if such Person or any Restricted Subsidiary
of such Person shall have acquired, sold or otherwise disposed of any Material
Asset during the four full Quarters for which financial information in respect
thereof is available immediately prior to the Transaction Date or during the
period from the end of such fourth full Quarter to and including the Transaction
Date, the calculation required in clause (i) above will be made giving effect to
such acquisition, sale or disposition on a pro forma basis as if such
acquisition, sale or disposition had occurred at the beginning of such four full
Quarter period without giving effect to clause (iii) of the definition of
"Consolidated Net Operating Income" (that is, including in such calculation
the Net Income for the relevant prior period of any Person acquired in a pooling
of interests transaction, notwithstanding the provisions of said clause (iii));
provided, further, that Fixed Charges of such Person during the applicable
period shall not include the amount of consolidated interest expense which is
directly attributable to Indebtedness to the extent such
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Indebtedness is reduced by the proceeds of the incurrence of such Indebtedness
which gave rise to the need to calculate the Consolidated Operating Cash Flow
Ratio.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
which office at the date of the execution of the Indenture located at Four
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency
Group or at any other time at such other address as the Trustee may designate
from time to time by notice to the Noteholders.
"Corporation" means a corporation, association, company, joint-stock
company, partnership, limited liability company or business trust.
"Credit Agreement" means that certain Credit Agreement, dated as of
September 25, 1997, by and among Xxxxx and the financial institutions party
thereto, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.12.
"Definitive Securities" means Securities that are in the form of the
Securities set forth in Article Two hereof, that do not include the information
called for by Section 2.06(g)(i).
"Depository" means, with respect to Securities issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Securities, until a successor shall have been
appointed and become such Depository pursuant to the applicable provisions of
this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Capital Stock" means any Capital Stock of the Company
that, either by its terms or by the terms of any security into which it is
convertible or exchangeable, is, or upon the happening of any event or passage
of time would be, required to be redeemed or purchased, including at the option
of the holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption, sinking fund or similar payment due,
on or prior to October 1, 2009.
"Equity Offering" means any offering of Capital Stock of the Company.
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"Event of Default" has the meaning as specified in Section 4.01.
"Excess Proceeds" has the meaning as specified in Section 9.18.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchangeable Preferred
Stock for the Securities.
"Existing Indebtedness" means any outstanding Indebtedness of the
Company and its Subsidiaries as of the Closing Date.
"Fixed Charges" of any Person means, for any period, the sum of (i)
consolidated Interest Expense of such Person and its Restricted Subsidiaries,
plus (ii) all but the principal component of rentals in respect of consolidated
Capitalized Lease Obligations of such Person and its Restricted Subsidiaries
paid, accrued or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period, and determined in accordance with
GAAP. For purposes of this definition, (a) interest on Indebtedness which
accrues on a fluctuating basis for periods succeeding the date of determination
shall be deemed to accrue at a rate equal to the average daily rate of interest
in effect during such immediately preceding Quarter, and (b) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined in good faith by the chief financial officer, treasurer or
controller of such Person to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as have been approved by a significant segment
of the accounting profession, which are in effect on the Closing Date.
"Global Security" means a Security that contains the additional
language referred to in footnote 1 to the form of Security attached hereto as
Exhibit A.
"Guaranty" means a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Gulf Merger Agreement" means the Agreement and Plan of Merger, dated
as of November 3, 1995, among the Company, Gulf Resources Corporation and GFR,
Inc.
"Gulf Payments" means all payments (other than the initial purchase
price of $26.9 million under the Gulf Oil Purchase Contract) to Gulf Resources
Corporation, a Panamanian corporation, and/or any of its Affiliates, and/or any
issuance to Gulf Resources
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Corporation of any equity interest in the Company, in each case, pursuant to the
Gulf Merger Agreement, the Gulf Oil Purchase Contract, the Gulf Stockholders'
Agreement and the Gulf Pledge Agreement, as each is in effect on the date
hereof.
"Gulf Oil Purchase Contract" means the Crude Oil Purchase Contract
between GFR, Inc. and Gulf Resources Corporation.
"Gulf Pledge Agreement" means the Pledge Agreement among the Company,
Gulf Resources Corporation and Gulf Resources Holdings, Inc.
"Gulf Stockholders' Agreement" means the Stockholders' Agreement
among the Company, Gulf Resources Corporation and Gulf Resources Holdings, Inc.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" with respect to any Person, means any indebtedness,
including, in the case of the Company, the indebtedness evidenced by the
Securities, if and when issued, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capital Leases) (except any such balance that
constitutes a trade payable in the ordinary course of business that is not
overdue by more than 90 days from the invoice date or is being contested in good
faith), if and to the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared on a consolidated basis
in accordance with GAAP, and shall also include, to the extent not otherwise
included, the Guaranty of Indebtedness of other Persons not included in the
financial statements of the Company, the maximum fixed redemption or repurchase
price of Disqualified Capital Stock (or if not redeemable or subject to
repurchase, the issue price) and the maximum fixed redemption or repurchase
price (or if not redeemable or subject to repurchase, the issue price) of
Preferred Stock issued by Xxxxx to any Person other than the Company.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Expense" of any Person means, for any period, the
aggregate amount of interest expense in respect of Indebtedness (excluding (a)
the Chevron Payment, (b) the AOC Payment, (c) the Gulf Payments and (d) the
amortization of debt issuance expense relating to the Securities, but including
without limitation or duplication (i) amortization of debt issuance expense with
respect to other Indebtedness, (ii) amortization of original issue discount on
any Indebtedness and (iii) the interest portion of any deferred payment
obligation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financings and the net cost
associated with Interest Swap Obligations) paid, accrued
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or scheduled to be paid or accrued by such Person during such period, determined
in accordance with GAAP.
"Interest Payment Date" means each April 1 and October 1, or if any
such day is not a Business Day, on the next succeeding Business Day.
"Interest Swap Obligations" means, when used with reference to any
Person, the obligations of such person under (i) interest rate swap agreements,
interest rate exchange agreements, interest rate cap agreements, and interest
rate collar agreements, (ii) currency swap agreements and currency exchange
agreements and (iii) other similar agreements or arrangements, which are, in
each such case, designed solely to protect such Person against fluctuations in
interest rates or currency exchange rates.
"Investment" means, when used with reference to any Person, any
direct or indirect advances, loans or other extensions of credit or capital
contributions by such Person to (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise), or purchases or acquisitions by such Person of Capital Stock, bonds,
notes, debentures or other securities issued by, any other Person or any
Guaranty or assumption of any liability (contingent or otherwise) by such Person
of any Indebtedness or Obligations of any other Person and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the price paid by the first buyer of such Security.
"Junior Subordinated Indebtedness" means any Indebtedness of the
Company which is subordinated in right of payment to the Securities and with
respect to which no payments of principal (by way of sinking fund, mandatory
redemption, maturity or otherwise, including, without limitation, at the option
of the holder thereof) are required to be made by the Company at any time prior
to October 1, 2009.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind (except for taxes not yet
owing) in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell and, with respect to which, any filing of or agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Material Asset" means, with respect to the Company or any Restricted
Subsidiary of the Company, any asset, related group of assets, business or
division of the Company or any Restricted Subsidiary of the Company (including
any capital stock of any Restricted Subsidiary of the Company) which (i) for the
most recent fiscal year of the Company, accounted or would have accounted for
more than 3% of the consolidated revenues of the Company or (ii) as at the end
of such fiscal year, represented or would have represented more than 3% of the
consolidated assets of the Company or has a fair market value in excess of $10
million, all as shown (x) with respect to any sale or disposition, on the
consolidated financial
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statements of the Company for such fiscal year or such shorter period as such
assets, business or division were owned by the Company or any Restricted
Subsidiary of the Company and (y) with respect to any acquisition, on
consolidated pro forma financial statements of the Company for the four full
Quarters for which financial information in respect thereof is available
immediately prior to such acquisition, giving effect thereto on a pro forma
basis as if such acquisition had occurred at the beginning of such four full
Quarters.
"Maturity" means, with respect to any Securities, the date on which
the principal of such Securities becomes due and payable as provided in the
Indenture, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Moody's" means Xxxxx'x Investor Service, Inc. and its successors.
"Net Available Proceeds" from any Equity Offering or any issuance of
Capital Stock by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash form)
therefrom by such Person, net of (i) all legal and accounting expenses,
commissions and other fees and expenses incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such issuance, and (ii) all payments made by such Person or its
Subsidiaries on any Indebtedness which must, in order to obtain a necessary
consent to such issuance or by applicable law, be repaid out of the proceeds
from such issuance.
"Net Income" of any Person for any period means the net income
(loss) from continuing operations of such Person for such period, determined in
accordance with GAAP.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender; and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Obligations" means any principal (and premium, if any), interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Occidental/Gulf Payments" means all payments (other than the initial
purchase price of $220.0 million under the Oxy Oil Purchase Contract and the
initial purchase price of $26.9 million under the Gulf Oil Purchase Contract) to
Occidental Petroleum Corporation, a Delaware corporation, Gulf Resources
Corporation, a Panamanian corporation, and/or any of
11
their Affiliates, and/or any issuance to Occidental Petroleum Corporation or
Gulf Resources Corporation of any equity interest in the Company, in each case,
pursuant to the Occidental Merger Agreement, the Gulf Merger Agreement, the Oxy
Oil Purchase Contract, the Gulf Oil Purchase Contract, the Oxy Stockholders'
Agreement, the Gulf Stockholders' Agreement and the Gulf Pledge Agreement, as
each is in effect on the date hereof.
"Occidental Merger Agreement" means the Agreement and Plan of Merger,
dated as of November 3, 1995, among the Company, Occidental C.O.B. Co., Inc. and
Occidental C.O.B. Partners.
"Occidental Transaction" means the transactions contemplated by the
Occidental Merger Agreement.
"Offer" has the meaning as specified in Section 10.09.
"Officers' Certificate"' means a certificate signed by at least two
officers of the Company, one signature being that of the Chairman of the Board,
a Vice Chairman of the Board, the President or a Vice President, and the other
signature being that of the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 9.05
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"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 2.07 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,
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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 a Responsible Officer of the Trustee actually 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.
"Oxy Oil Marketing Contract" means the Crude Oil Marketing Contract
between the Company and Occidental Crude Sales, Inc. (International).
"Oxy Oil Purchase Contract" means the Crude Oil Purchase Contract
between the Company and Occidental C.O.B. Partners.
"Oxy Stockholders' Agreement"' means the Stockholders' Agreement
between the Company and Occidental C.O.B. Partners.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company. The Company initially appoints the Trustee as Paying Agent.
"Permitted Indebtedness" means Indebtedness incurred by the Company
or its Restricted Subsidiaries (i) to renew, extend, refinance or refund
Indebtedness that is permitted to be incurred pursuant to clauses (ii) through
(iv) below; provided, however, that such Indebtedness does not exceed the
principal amount of the Indebtedness so renewed, extended, refinanced or
refunded plus the amount of any premium required to be paid in connection with
such refinancing pursuant to the terms of the Indebtedness refinanced or the
amount of any premium reasonably determined by the Company or such Restricted
Subsidiary as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated repurchase, plus the expenses of the Company or
such Restricted Subsidiary incurred in connection with such refinancing; and
provided, however, that Indebtedness the proceeds of which are used to refinance
or refund such Indebtedness shall only be permitted if (A) in the case of any
refinancing or refunding of Indebtedness that is pari passu with the Securities
the refinancing or refunding Indebtedness is made pari passu with the Securities
or subordinated to the Securities, (B) in the case of any refinancing or
refunding of Indebtedness that is subordinated to the Securities the refinancing
or refunding of Indebtedness is made subordinated to the Securities at least to
the same extent as such Indebtedness being refinanced or refunded was
subordinated to the Securities and (C) in the case of the refinancing or
refunding of Indebtedness that is subordinated to the Securities, the
refinancing or refunding Indebtedness by its terms, or by the terms of any
agreement or instrument pursuant to which such Indebtedness is issued, (x) does
not provide for payments of principal of such Indebtedness at the stated
maturity thereof or by way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase thereof by the
Company or such Restricted Subsidiary (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding any
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retirement required by virtue of acceleration of such Indebtedness upon an event
of default thereunder), in each case prior to the final Stated Maturity of the
Securities and (y) does not permit redemption or other retirement (including
pursuant to an offer to purchase made by the Company or such Restricted
Subsidiary) of such Indebtedness at the option of the holder thereof prior to
the final stated maturity of the Indebtedness being refinanced or refunded,
other than a redemption or other retirement at the option of the holder of such
Indebtedness (including pursuant to an offer to purchase made by the Company or
such Restricted Subsidiary), which is conditioned upon the change of control of
the Company or such Restricted Subsidiary); (ii) arising from time to time under
the Credit Agreement in an aggregate principal amount not to exceed the greater
of (a) $500 million at any one time outstanding less the aggregate amount of all
proceeds of all asset dispositions that have been applied since the Closing Date
to permanently reduce the outstanding amount of such Indebtedness and (b) the
amount of the Borrowing Base as of such date (calculated on a pro forma basis
after giving effect to such borrowing and the application of the proceeds
therefrom); (iii) outstanding on the Closing Date; (iv) evidenced by trade
letters of credit incurred in the ordinary course of business not to exceed $20
million in the aggregate at any time; (v) between or among the Company and/or
its Restricted Subsidiaries other than Restricted Subsidiaries owned in any part
by the Principal Shareholders; (vi) which is Junior Subordinated Indebtedness;
(vii) arising out of Sale and Leaseback Transactions or Capitalized Lease
Obligations relating to computers and other office equipment and elements,
catalysts or other chemicals used in connection with the refining of petroleum
or petroleum by-products; (viii) the proceeds of which are used to make the
Chevron Payment, the AOC Payment and the Gulf Payments; (ix) arising out of
Interest Swap Obligations; (x) in connection with capital projects qualifying
under Section 142(a) (or any successor provision) of the Internal Revenue Code
of 1986, as amended, in an amount not to exceed $75 million in the aggregate at
any time; and (xi) in addition to Indebtedness permitted by clauses (i) through
(x) above, Indebtedness not to exceed on a consolidated basis for the Company
and its Restricted Subsidiaries at any time $50 million.
"Permitted Liens" means (i) Liens in favor of the Company; (ii) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company, provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company; (iii) Liens on property existing at the time of acquisition thereof by
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition; (iv) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (v)
Liens existing on the Closing Date; (vi) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(vii) Liens imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's, and vendors' Liens, incurred in good faith in the ordinary course
of business with respect to amounts not yet delinquent or being contested in
good faith by appropriate proceedings if a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor;
(viii) zoning restrictions, easements, licenses, covenants, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto that do not, in the
14
aggregate, materially detract from the value of the property or the assets of
the Company or impair the use of such property in the operation of the Company's
business; (ix) judgment Liens to the extent that such judgments do not cause or
constitute a Default or an Event of Default; (x) Liens to secure the payment of
all or a part of the purchase price of property or assets acquired or the
construction costs of property or assets constructed in the ordinary course of
business on or after the Closing Date, provided that (a) such property or assets
are used in the Principal Business of the Company, (b) at the time of incurrence
of any such Lien, the aggregate principal amount of the obligations secured by
such Lien shall not exceed the lesser of the cost or fair market value of the
assets or property (or portions thereof) so acquired or constructed, (c) each
such Lien shall encumber only the assets or property (or portions thereof) so
acquired or constructed and shall attach to such assets or property within 180
days of the purchase or construction thereof and (d) any Indebtedness secured by
such Lien shall have been permitted to be incurred under Section 1014 hereof;
(xi) Liens incurred in the ordinary course of business of the Company with
respect to obligations that do not exceed 5% of Consolidated Net Tangible Assets
at any one time outstanding; and (xii) Liens incurred in connection with
Interest Swap Obligations.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" has the meaning specified in Paragraph 3 of Exhibit
A attached hereto.
"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 2.07 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" means any share of Capital Stock of any Person in
respect of which the holder thereof is entitled to receive payment before any
other payment is made with respect to any other Capital Stock of such Person.
"Preferred Stock Dividends" means, with respect to any Person for any
period, the amount of regularly scheduled dividends accrued, accruable, paid or
payable during such period, whether in cash or otherwise, with respect to any
Preferred Stock of such Person.
"Principal Business" means, with respect to the Company and its
Restricted Subsidiaries, (i) the business of the acquisition, processing,
marketing, refining, storage and/or transportation of hydrocarbons and/or
royalty or other interests in crude oil or associated products related thereto,
(ii) the acquisition, operation, improvement, leasing and other use of
convenience stores, retail service stations, truck stops and other public
accommodations in connection therewith, (iii) any business currently engaged in
by the Company or its Restricted Subsidiaries on the Closing Date, and (iv) any
activity or business that is a reasonable extension, development or expansion
of, or reasonably related to, any of the foregoing.
15
"Principal Shareholders" means (i) TrizecHahn Corporation, (ii)
Occidental Petroleum Corporation, (iii) Gulf Resources Corporation and (iv)
Affiliates of the Persons described in the foregoing clauses (i) through (iii),
other than the Company and its Subsidiaries.
"Purchase Date" has the meaning as specified in Section 10.09.
"Quarter" means a fiscal quarterly period of the Company.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the
Exchange 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 the Exchange
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Closing Date, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer" shall mean when used with respect to the
Trustee, any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Restricted Debt Prepayment" means any purchase, redemption,
defeasance (including, but not limited to, in-substance or legal defeasance) or
other acquisition or retirement for value (collectively a "prepayment"),
directly or indirectly, by the Company or a Restricted Subsidiary of the
Company, prior to the scheduled maturity on or prior to any scheduled repayment
of principal (and premium, if any) or sinking fund payment in respect of
Indebtedness of the Company (other than the Exchangeable Preferred Stock and the
Securities) which is subordinate in right of payment to the Exchangeable
Preferred Stock.
"Restricted Investment" means any direct or indirect Investment by the
Company or any Restricted Subsidiary of the Company in (i) any Affiliate of the
Company which is not a Restricted Subsidiary of the Company and (ii) any
Unrestricted Subsidiary of the Company, other than direct or indirect
investments in (a) Polymer Asphalt L.L.C., a Missouri limited liability company
and (b) any pipeline company in which the Company or any of its Restricted
Subsidiaries now owns or hereafter acquires any interest; provided that the
aggregate amount of Investments made by the Company or any of its Restricted
Subsidiaries pursuant to clauses (a) and (b) above shall not exceed $25 million
in the aggregate at any one time outstanding.
16
"Restricted Payment" means (i) any Stock Payment, (ii) any Restricted
Investment, or (iii) any Restricted Debt Prepayment. Notwithstanding the
foregoing, Restricted Payments shall not include (a) payments by the Company to
any Restricted Subsidiary of the Company, (b) payments by any Restricted
Subsidiary of the Company to the Company or any other Restricted Subsidiary of
the Company, (c) the Chevron Payment, (d) the AOC Payment and (e) the Gulf
Payments.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not (i) an Unrestricted Subsidiary or (ii) a direct or
indirect Subsidiary of an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation and its successors.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 365 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Custodian" means the Trustee, as custodian with respect to
the Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 2.03.
"Senior Debt" has the meaning as specified in Section 11.02.
"Shareholder/Affiliate Transaction" has the meaning as specified in
Section 9.11.
"Special Interest" has the meaning as specified in Paragraph 1 of
Exhibit A attached hereto.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Company with the consent of the Trustee pursuant to
Paragraph 3 of Exhibit A attached hereto.
17
"Stated Maturity" means October 1, 2009.
"Stock Payment" means (i) with respect to the Company, any dividend,
either in cash or in property (except dividends payable in Capital Stock of the
Company which is not convertible into Indebtedness), on, or the making by the
Company of any other distribution in respect of, its Capital Stock, now or
hereafter outstanding, or the redemption, repurchase, retirement, defeasance or
any acquisition for value by the Company, directly or indirectly, of its Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of its Capital Stock, now or hereafter outstanding (other than in exchange
for the Company's Capital Stock (other than Disqualified Stock) or options,
warrants or other rights to purchase the Company's Capital Stock (other than
Disqualified Stock)), and (ii) with respect to any Restricted Subsidiary of the
Company, any redemption, repurchase, retirement, defeasance or any acquisition
of its Capital Stock or the Capital Stock of the Company or any warrants,
rights, or options to purchase or acquire shares of any class of its Capital
Stock or the Capital Stock of the Company, now or hereafter outstanding, except
with respect to its Capital Stock or such warrants, rights or options to
purchase or acquire shares of any class of its Capital Stock owned by the
Company or a Restricted Subsidiary of the Company.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the total voting power of all classes of the outstanding voting stock of which
is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and one
or more other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and the power to direct the policies, management and affairs
thereof.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Transaction Date" means the date on which the Indebtedness giving
rise to the need to calculate the Consolidated Operating Cash Flow Ratio was
incurred or the date on which, pursuant to the terms of this Indenture, the
transaction giving rise to the need to calculate the Consolidated Operating Cash
Flow Ratio occurred.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.06(g)(i) hereof.
"TrizecHahn" means the Trizec Xxxx Corporation.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the Closing Date; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
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"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary (other than Xxxxx or
any successor to Xxxxx) that is designated by the board of directors of the
Company as an Unrestricted Subsidiary pursuant to a Board Resolution; but only
to the extent that such Subsidiary: (a) has no Indebtedness other than Non-
Recourse Debt; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (c) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Capital Stock (including options, warrants or other
rights to acquire Capital Stock) or (y) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. If, at any time, any Unrestricted Subsidiary would
fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under "Limitations on Indebtedness", the Company shall
be in default of such covenant). The board of directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Sections 9.12 and 9.13
hereof, and (ii) no Default or Event of Default would be in existence following
such designation.
"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".
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned U.S. Restricted Subsidiary" of any Person means a Wholly
Owned Restricted Subsidiary of such Person which is organized under the laws of
any state in the United States or of the District of Columbia.
Section 1.02. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates
19
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(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, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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 such certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Dates.
20
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 5.01) shall be 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 Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 6.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) 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.
Section 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
21
(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, Attention: Corporate
Trust and Agency Group, 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.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail with first-class postage prepaid, if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery; provided that notice to the Trustee
shall be deemed given only when received by the Trustee.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail with first-class postage prepaid, if
mailed; when receipt acknowledged, if sent by facsimile; and the next business
day after timely delivery to the courier, if sent by recognized overnight
courier guaranteeing next-day delivery.
Section 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act, the latter provision shall control. If any
provision of this Indenture modifies or
22
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. 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 1.11. 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 and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF).
Section 1.13. Legal Holidays.
In any case where any Redemption Date, Purchase Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal
(and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Redemption Date, Purchase Date or at the Stated Maturity.
Section 1.14. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture for any claim based on, in respect of or
by reason of such obligations or their
23
creation. Each Holder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
ARTICLE 2
---------
THE SECURITIES
--------------
Section 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication. The
Securities will be issued in registered form, without coupons. Securities issued
in exchange for Exchangeable Preferred Stock will be issued in principal amounts
of $1,000 and integral multiples thereof to the extent possible, and will also
be issued in principal amounts less than $1,000 so that each holder of
Exchangeable Preferred Stock will receive certificates representing the entire
amount of Securities to which such holder's shares of Exchangeable Preferred
Stock entitle such holder; provided that the Company may pay cash in lieu of
issuing a Security in a principal amount less than $1,000. The aggregate
principal amount of the Securities shall be limited to the liquidation
preference of the Exchangeable Preferred Stock, plus, without duplication,
accumulated and unpaid dividends, on the date or dates on which it is exchanged
for Securities (plus any additional Securities issued in lieu of cash interest).
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Securities issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the text referred to in footnote 1
thereto). Securities issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without including the text referred to in
footnote 1 thereto). Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Securities from time to
time endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee or the
Security Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.04 hereof
Section 2.02. Execution and Authentication.
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Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Securities for original issue up to the aggregate
principal amount stated in paragraph 1 of the Securities. The aggregate
principal amount of Securities outstanding at any time may not exceed such
amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Security Custodian with respect to the Global
Securities.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages,
25
if any, or interest on the Securities, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for
the money. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Securities.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented by a Holder to the Registrar with a
request:
(x) to register the transfer of the Definitive Securities;
or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Securities presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing; and
(ii) in the case of a Definitive Security that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification to that effect from such Holder (in
substantially the form of Exhibit B hereto); or
26
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144 or Rule
904 under the Securities Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from such Holder (in
substantially the form of Exhibit B hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect from such Holder (in
substantially the form of Exhibit B hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance with the Securities
Act.
(b) Transfer of a Definitive Security for a Beneficial Interest
in a Global Security. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, a certification from the Holder thereof (in substantially the form of
Exhibit B hereof ) to the effect that such Definitive Security is being
transferred by such Holder to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions from the Holder thereof directing the
Trustee to make, or to direct the Security Custodian to make, an endorsement on
the Global Security to reflect an increase in the aggregate principal amount of
the Securities represented by the Global Security,
in which case the Trustee shall cancel such Definitive Security in accordance
with Section 2.11 hereof and cause, or direct the Security Custodian to cause,
in accordance with the standing instructions and procedures existing between the
Depository and the Security Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If no
Global Securities are then outstanding, the Company shall issue and, upon
receipt of an authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture and the
procedures of the Depository therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.
27
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a Definitive
Security. Upon receipt by the Trustee of written instructions or such other form
of instructions as is customary for the Depository, from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global
Security, and, in the case of a Transfer Restricted Security, the following
additional information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred
to the Person designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in substantially the form of
Exhibit B hereto); or
(B) if such beneficial interest is being transferred
to a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144 or Rule
904 under the Securities Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit B hereto); or
(C) if such beneficial interest is being transferred
in reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit B hereto) and an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance with the Securities
Act,
in which case the Trustee or the Security Custodian, at the
direction of the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depository and
the Security Custodian, cause the aggregate principal amount of
Global Securities to be reduced accordingly and, following such
reduction, the Company shall execute and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver to the transferee a
Definitive Security in the appropriate principal amount.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.06(d) shall
be registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Definitive
Securities to the Persons in whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global
Security may not be transferred as a whole
28
except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by
the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
(f) Authentication of Definitive Securities in Absence of Depository.
If at any time:
(i) the Depository for the Securities notifies the Company
that the Depository is unwilling or unable to continue as Depository for the
Global Securities and a successor Depository for the Global Securities is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive Securities
under this Indenture, then the Company shall execute, and the Trustee shall,
upon receipt of an authentication order in accordance with Section 2.02 hereof,
authenticate and deliver, Definitive Securities in an aggregate principal amount
equal to the principal amount of the Global Securities in exchange for such
Global Securities.
(g) Legends.
(i) Except as permitted by the following paragraph (ii),
each Security certificate evidencing Global Securities and Definitive Securities
(and all Securities issued in exchange therefor or substitution thereof) shall
bear legends in substantially the following form:
THE EXCHANGEABLE PREFERRED STOCK EVIDENCED HEREBY AND THE
EXCHANGE DEBENTURES ISSUABLE UPON EXCHANGE OF SUCH
EXCHANGEABLE PREFERRED STOCK HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (4)
29
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security that does
not bear the first legend set forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Security, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(c) hereof; provided, however, that
with respect to any request for an exchange of a Transfer Restricted Security
that is represented by a Global Security for a Definitive Security that does not
bear the first legend set forth in (i) above, which request is made in reliance
upon Rule 144, the Holder thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such certification to be
substantially in the form of Exhibit B hereto.
(h) Cancellation and/or Adjustment of Global Securities. At such
time as all beneficial interests in Global Securities have been exchanged
for Definitive Securities, redeemed, repurchased or cancelled, all Global
Securities shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged
for Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction of
the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive Securities
and Global Securities at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection
30
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 10.01, 9.18 and 12.01.
(iii) The Registrar shall not be required to register the
transfer of or exchange any Security selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
(iv) All Definitive Securities and Global Securities issued
upon any registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to
exchange Securities during a period beginning at the opening of business 15 days
before the day of any selection of Securities for redemption under Section 10.04
hereof and ending at the close of business on the day of selection; or
(B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or
(C) to register the transfer of or to exchange a
Security between a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
interest on such Securities, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Definitive Securities
and Global Securities in accordance with the provisions of Section 2.02 hereof.
Section 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Security is replaced. The
Company may charge for its expenses in replacing a Security.
31
Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
Section 2.08. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 9.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that a Trustee knows are so owned
shall be so disregarded.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities
and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
32
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Securities (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all cancelled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Securities and in Section 9.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Security and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3.
----------
SATISFACTION AND DISCHARGE
--------------------------
Section 3.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon the request of the Company, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07 and (ii) 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 9.03) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
33
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium 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;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with; and
(4) the Trustee shall have received such other documents and
assurances as the Trustee shall have reasonably requested.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.07, the obligations'
of the Trustee to any Authenticating Agent under Section 5.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section 3.02 and the
last paragraph of Section 9.03 shall survive.
Section 3.02. Application of Trust Money.
Subject to provisions of the last paragraph of Section 9.03, all money
deposited with the Trustee pursuant to Section 3.01 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 any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE 4.
----------
REMEDIES
--------
Section 4.01. Events of Default.
34
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) failure by the Company to observe or perform any covenant,
condition on the part of the Company to be performed or observed pursuant
to Section 9.01 hereof; or
(4) 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 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate 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
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any
Restricted Subsidiary of the Company (or the payment of which is guaranteed
by the Company or a Restricted Subsidiary of the Company), whether such
Indebtedness or guarantee now exists or shall be created hereafter, if (a)
either (i) such default results from the failure to pay principal (and
premium, if any) upon the expressed maturity of such Indebtedness (after
the expiration of any applicable grace period) or (ii) as a result of such
default the maturity of such Indebtedness has been accelerated prior to its
expressed maturity and (b) the principal (and premium, if any) amount of
such Indebtedness, together with the principal (and premium, if any) amount
of any other such Indebtedness with respect to which the principal (and
premium, if any) amount unpaid upon its expressed maturity (after the
expiration of any applicable grace period), or the maturity of which has
been so accelerated, aggregates $10 million or more; or
(6) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any Subsidiary of the Company and such judgment or judgments remain
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, provided that the aggregate of all such judgments (to
the extent not paid or to be paid by insurance) exceeds $10 million; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Subsidiary of
the Company in an
35
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 or any Subsidiary of 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 or any Subsidiary 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 any
Subsidiary of the Company or of any substantial part of the property of the
Company or any Subsidiary of the Company, or ordering the winding up or
liquidation of the affairs of the Company or any Subsidiary of the Company,
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
(8) the commencement by the Company or any Subsidiary of the Company
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Subsidiary of the Company to the entry of a
decree or order for relief in respect of the Company or any Subsidiary 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 the Company or any Subsidiary of the Company, or the
filing by the Company or any Subsidiary of the Company of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company or any Subsidiary of
the Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Subsidiary of
the Company or of any substantial part of their respective property, or the
making by the Company or any Subsidiary of the Company of an assignment for
the benefit of creditors, or the admission by either the Company or any
Subsidiary of the Company in writing of an inability to pay debts generally
as they become due, or the taking of corporate action by the Company or any
Subsidiary of the Company in furtherance of any such action.
Section 4.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
clause 4.01(7) or (8)) with respect to the Securities at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities may declare
the Default Amount of all of 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 Default Amount shall become immediately due
and payable.
In the event of a declaration of acceleration because an Event of
Default specified in Section 4.01(5) has occurred and is continuing, such
declaration of acceleration shall be automatically annulled if the holders of
the Indebtedness which is the subject of such Event of Default have rescinded
their declaration of acceleration in respect of such Indebtedness within 90-days
thereof and the Trustee has received written notice of such cure, waiver or
rescission and
36
no other Event of Default has occurred during such 90-day period which has not
been cured or waived. If an Event of Default specified in clauses (7) or (8) of
Section 4.01 occurs, the Default Amount of Securities then outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities 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 Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of acceleration
(including any Securities required to have been purchased on the Purchase
Date pursuant to an Offer to purchase made by the Company) and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and principal (and premium, if any) at a
rate of ___% per annum, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to the Securities, other than
the non-payment of the principal of Securities which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 4.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) 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
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been
37
purchased pursuant to an Offer to purchase made by the Company, at the
Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium 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 or
rates prescribed therefor in such 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 and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, wherever
situated.
If an Event of Default with respect to the Securities 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 4.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take-any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance with Section 4.06 hereof; 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 5.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
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.
38
Section 4.05. 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 shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 4.06. Application of Money Collected.
Any money or other property 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 case of the distribution of such money or other property 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 payment of all amounts due the Trustee under Section
5.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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
and payable on such Securities for principal (and premium, if any) and
interest, respectively.
Section 4.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in aggregate 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
39
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that not one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
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 2.12) interest on such Security on the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date or in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Security, on the Purchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 4.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively 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 4.10. 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 2.07, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 4.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
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. Subject to Section
40
4.07, 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 4.12. 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, with respect to the Securities,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 4.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities, upon written notice to the Trustee and the Company, may
on behalf of the Holders of all the Securities waive any past default hereunder
with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to purchase which has been made by the
Company), or
(2) 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.
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 4.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
41
Section 4.15. Waiver of Stay, Extension or Usury 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, extension or usury 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 pursuant to any such law
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 5.
----------
THE TRUSTEE
-----------
Section 5.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act provided, however, that if an Event of Default occurs,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if 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. 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 5.01.
Section 5.02. Notice of Defaults.
If a default occurs hereunder with respect to the Securities, the
Trustee shall give the Holders notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 4.01(4), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 5.03. Certain Rights of Trustee.
Subject to the provisions of Section 5.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
42
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, conclusively 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 reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its sole 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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians and nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder.
(h) the rights and protections afforded to the Trustee under this
Section 5.03 shall be afforded to the Paying Agent, Registrar and
Authenticating Agent if the Trustee is acting in such capacity.
Section 5.04. 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
43
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 5.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
5.08 and 5.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent, as the case may be.
Section 5.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 5.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its gross negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors, employees and
agents for, and to hold it harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of any litigation,
threatened or otherwise, in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 5.07, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such.
The obligations of the Company under this Section 5.07 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by
44
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or coupons, and the Securities are hereby subordinated
to such senior claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 4.01(7) or Section 4.01(8) hereof,
the parties hereto and the Holders by their acceptance of the Securities hereby
agree that such expenses are intended to constitute expenses of administration
under any bankruptcy law.
Section 5.08. Administrative Expense
The obligations of the Company under this Section 5.08 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law. Such additional indebtedness shall be a
senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities or coupons, and the Securities are hereby
subordinated to such senior claim. If the Trustee renders services and incurs
expenses following an Event of Default under Section 4.01(7) or Section 4.01(8)
hereof, the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
Section 5.09. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. Further, it is
understood that the Trustee shall be entitled to any and all rights that the
Trustee may have in its individual capacity or any other capacity with respect
to any Indebtedness of the Company, and no provision of this Indenture shall be
construed as to limit or diminish any such right.
Section 5.10. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 5.11. 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
45
appointment by the successor Trustee in accordance with the applicable
requirements of Section 5.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 5.11 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:
(1) the Trustee shall fail to comply with Section 5.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 5.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 4.14, 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 or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees. 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 in accordance
with the applicable requirements of Section 5.11, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 5.11, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
46
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 5.12. 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,
including, without limitation, all monies due and owing to the retiring Trustee,
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 5.13. 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.
Section 5.14. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 5.15. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption
47
thereof or pursuant to Section 2.07, 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. Wherever 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 an 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 not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
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 written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, 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 Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
48
Bankers Trust Company
As Trustee
By
---------------------------------------
As Authenticating Agent
By
---------------------------------------
Authorized Officer
49
ARTICLE 6.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee at
any time, and from time to time as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of the names
and addresses of the Holders as of a date not more than 15 days prior to the
time such list is furnished.
Section 6.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 6.01. The Trustee may
destroy any list furnished to it as provided in Section 6.01 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(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 any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 6.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee in writing when any Securities are listed on any stock
exchange.
Section 6.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
50
ARTICLE 7.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into (whether or
not the Company is the Surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another Person unless:
(a) the Surviving Person is a corporation organized and existing under
the laws of the United States, any state thereof or the District of
Columbia;
(b) the Surviving Person (if other than the Company) assumes by
supplemental indenture in a form reasonably satisfactory to the Trustee all
the obligations of the Company under the Securities and this Indenture;
(c) at the time of and immediately after such Disposition no Default
or Event of Default shall have occurred and be continuing;
(d) the Surviving Person will have Consolidated Adjusted Net Worth
(immediately after the Disposition but prior to any purchase accounting
adjustments resulting from the transaction) equal to or greater than 90% of
the Consolidated Adjusted Net Worth of the Company immediately preceding
the transaction;
(e) after giving pro forma effect thereto, the Surviving Person would
be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Consolidated Operating Cash Flow Ratio test set forth in the covenant
described under the first paragraph of Section 9.12 hereof; and
(f) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 7.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, lease or other disposition
of the properties and assets of the Company substantially as an entirety in
accordance with Section 9.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer, lease
or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor 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; provided, however, that the predecessor Company shall
51
not be relieved from the obligation to pay principal of and interest on the
Securities, except in the case of a transfer, conveyance, sale or other
disposition (excluding by lease) of all of the Company's assets that meets the
requirements of Section 801 hereof.
ARTICLE 8.
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company 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 add any additional Events of Default; or
(4) to secure the Securities; or
(5) to establish the form or terms of Securities as permitted by
Section 2.01; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (7)
shall not adversely affect the interests of the Holders in any material
respect.
Section 8.02. 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,
52
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or
(2) reduce the principal amount of (or the premium), or interest on,
any Securities, or
(3) change the place or currency of payment of principal of (or
premium), or interest on, any Securities, or
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Securities, or
(5) reduce the above-stated percentage of Outstanding Securities
necessary to modify or amend the Indenture, or
(6) reduce the percentage of aggregate principal amount of Outstanding
Securities necessary for waiver of compliance of certain covenants, as set
forth in Article 4.13 or 9.21 hereof, or
(7) modify any provisions of this Indenture relating to the
modification and amendment of this Indenture or the waiver of past defaults
or covenants, except as otherwise specified herein.
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 8.03. Execution of Supplemental Indentures.
In executing, or accepting the 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 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 8.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 8.05. Conformity with Trust Indenture Act.
53
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 8.06. 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.
Section 8.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.02, the Company
shall give notice to all Holders of such fact, setting forth in general terms
the substance of such supplemental indenture, in the manner provided in Section
1.06. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE 9.
----------
COVENANTS
---------
Section 9.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it shall 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.
Section 9.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency in the Borough of
Manhattan, City of New York where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints
Bankers Trust Company as Paying Agent and Security Registrar. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company terminates the
appointment of a Paying Agent or Security Registrar or otherwise shall fail to
maintain any such required office or agency, the Company shall use its
reasonable best efforts to appoint a successor Paying Agent or Security
Registrar reasonably acceptable to the Trustee. If the Company fails to maintain
a Paying Agent or Security Registrar, the Trustee shall act as such, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and
54
demands. The Company shall forward copies of all presentations, surrenders,
notices and demands to the Trustee promptly upon their receipt.
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 in the
Borough of Manhattan, City of New York, for such purposes. The Company shall
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 9.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
shall, on or prior to 11:00 a.m. New York City time on each due date of the
principal of or any premium 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 any premium and interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or any premium or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
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.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security and remaining unclaimed for two years after such
principal, premium 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,
55
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.04. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such officer signing such certificate, that to the best of
such officer's knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such officer may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of such officers' knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of (and
premium, if any) or interest on the Securities are prohibited or if such event
has occurred, a description of the event and what action the Company is taking
or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the financial statements
delivered pursuant to Section 9.08 shall be accompanied by a written statement
of the Company's independent public accountants (who shall be a firm of
established national reputation reasonably satisfactory to the Trustee) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Articles Eight or Ten of this Indenture
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any officer becoming aware
of (i) any default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument as described in Section 4.01(5), an
Officers' Certificate specifying such default, Event of Default or event of
default and what action the Company is taking or proposes to take with respect
thereto.
Section 9.05. Existence.
56
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its 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 and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 9.06. Maintenance of Properties.
The Company shall cause all properties used or useful in the conduct
of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary of the Company and not
disadvantageous in any material respect to the Holders.
Section 9.07. Payment of Taxes and Other Claims.
The Company shall, or shall cause its Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary of the Company or upon the income,
profits or property of the Company or any Subsidiary of the Company, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary of the Company;
provided, however, that the Company and its Subsidiaries shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 9.08. Provision of Financial Information.
Whether or not the Company is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission the annual reports, quarterly reports and other
documents (including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual information
only, a report thereon by the Company's certified independent accountants) which
the Company would have been required to file with the Commission pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the Company
were so required, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so required.
The Company shall also in any event (a) within 15 days of each Required Filing
Date (i) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, without cost to such Holders, and (ii) file with the
Trustee, in each case, copies of the annual reports, quarterly reports and other
documents which
57
the Company would have been required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act or any successor provisions thereto
if the Company were required to be subject to such Sections and (b) if filing
such documents by the Company with the Commission is not permitted under the
Exchange Act, promptly upon written request supply copies of such documents to
any prospective Holder. In addition, the Company shall, for so long as any
Securities remain outstanding, furnish to all Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144(d)(4) under the Securities Act.
Section 9.09. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless (i)
at the time of and immediately after giving effect to the proposed Restricted
Payment, no Default or Event of Default shall have occurred and be continuing,
or would occur as a consequence thereof, and (ii) at the time of and immediately
after giving effect to the proposed Restricted Payment (the value of any such
payment if other than cash, as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution), the aggregate
amount of all Restricted Payments declared or made subsequent to the Issue Date
shall not exceed the sum of (a) 50% of the aggregate Consolidated Net Operating
Income (or, if such aggregate Consolidated Net Operating Income is a deficit,
minus 100% of such deficit) of the Company for the period (taken as one
accounting period) from June 30, 1997, to the end of the Company's most recently
ended fiscal quarter for which internal financial statements are available at
the time of such Restricted Payment plus (b) 100% of the aggregate net proceeds,
including cash and the fair market value of property other than cash (as
determined in good faith by the Board of Directors of the Company and evidenced
by a Board Resolution), received by the Company since June 30, 1997 from any
Person other than a Subsidiary of the Company as a result of the issuance of
Capital Stock (other than any Disqualified Capital Stock) of the Company
including such Capital Stock issued upon conversion of Indebtedness or upon
exercise of warrants and any contributions to the capital of the Company
received by the Company from any such Person plus (c) $50 million plus (d) to
the extent that any Restricted Investment that was made after June 30, 1997 is
sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the
cash return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (B) the initial amount of such Restricted
Investment. For purposes of any calculation pursuant to the preceding sentence
which is required to be made within 60 days after the declaration of a dividend
by the Company, such dividend shall be deemed to be paid at the date of
declaration.
The foregoing provisions of this covenant shall not be violated by
reason of (a) the payment of any dividends or distributions payable solely in
shares of the Company's Capital Stock (other than Disqualified Stock) or in
options, warrants or other rights to acquire the Company's Capital Stock (other
than Disqualified Stock), (b) the payment of dividends in accordance with the
terms of the Exchangeable Preferred Stock, (c) the payment of any dividend
within 60 days after the date of declaration thereof if, at such date of
declaration, such payment complied with the provisions described above, (d) the
retirement of any shares of the Company's Capital Stock in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of, other shares of its Capital Stock (other than
58
Disqualified Capital Stock) or options, warrants or other rights to purchase the
Company's Capital Stock (other than Disqualified Stock), (e) the Chevron
Payment, (f) the AOC Payment, (g) the Gulf Payments, and (h) the making of any
payment in redemption of Capital Stock of the Company or options to purchase
such Capital Stock granted to officers or employees of the Company pursuant to
any stock option, stock purchase or other stock plan approved by the board of
directors of the Company in connection with the severance or termination of
officers or employees not to exceed $4 million per annum.
The board of directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default or Event of Default; provided that, in no event shall the business
currently operated by the Company and Xxxxx be transferred to or held by an
Unrestricted Subsidiary. For purposes of making such determination, all
outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated shall be deemed to
be Restricted Payments at the time of such designation and will reduce the
amount available for Restricted Payments under the first paragraph of this
Limitation on Restricted Payments covenant. All such outstanding Investments
shall be deemed to constitute Investments in an amount equal to the greatest of
(x) the net book value of such Investments at the time of such designation, (y)
the fair market value of such Investments at the time of such designation, and
(z) the original fair market value of such Investments at the time they were
made. Such designation shall only be permitted if such Restricted Payment would
be permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
Section 9.10. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction which, by its terms,
restricts the ability of any Restricted Subsidiary of the Company to (i) pay
dividends or make any other distributions on any such Restricted Subsidiary's
Capital Stock or pay any Indebtedness owed to the Company or any Restricted
Subsidiary of the Company, (ii) make any loans or advances to the Company or any
Restricted Subsidiary of the Company, or (iii) transfer any of its property or
assets to the Company or any Restricted Subsidiary of the Company, except for,
in the case of clauses (i), (ii) and (iii) above, any restrictions (a) existing
under the Certificate of Designations or the Exchange Indenture and any
restrictions existing on the Closing Date pursuant to any agreement relating to
Existing Indebtedness of the Company's Restricted Subsidiaries, (b) pursuant to
an agreement relating to Indebtedness incurred by such Restricted Subsidiary
prior to the date on which such Restricted Subsidiary was acquired by the
Company and outstanding on such date and not incurred in anticipation of
becoming a Restricted Subsidiary, (c) imposed by virtue of applicable corporate
law or regulation and relating solely to the payment of dividends or
distributions to stockholders, (d) with respect to restrictions of the nature
described in clause (iii) above, included in a contract entered into in the
ordinary course of business and consistent with past practices that contains
provisions restricting the assignment of such contract, (e) pursuant to an
agreement effecting a renewal, extension, refinancing, refunding or replacement
of Indebtedness referred to in (a) or (b)
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above; provided, however, that the provisions contained in such renewal,
extension, refinancing, refunding or replacement agreement relating to such
encumbrance or restriction, taken as a whole, are not materially more
restrictive than the provisions contained in the agreement the subject thereof,
as determined in good faith by the Board of Directors, or (f) which shall not in
the aggregate cause the Company not to have the funds necessary to pay the
principal of, premium, if any, or interest, including Special Interest, on the
Securities at their Stated Maturity.
Section 9.11. Limitation on Transactions with Shareholders and Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, conduct any business or enter into
any transaction or series of similar transactions (including, without
limitation, the purchase, sale, transfer, lease or exchange of any property or
the rendering of any service) with (i) any direct or indirect holder of more
than 5% of any class of Capital Stock of the Company or of any Restricted
Subsidiary of the Company (other than transactions between or among the Company
and/or its Restricted Subsidiaries except for Restricted Subsidiaries owned in
any part by the Principal Shareholders) or (ii) any Affiliate of the Company
(other than transactions between or among the Company and/or its Restricted
Subsidiaries except for Restricted Subsidiaries owned in any part by the
Principal Shareholders) (each of the foregoing, a "Shareholder/Affiliate
Transaction") unless the terms of such business, transaction or series of
transactions (a) are set forth in writing and (b) are as favorable to the
Company or such Restricted Subsidiary in all material respects as terms that
would be obtainable at the time for a comparable transaction or series of
similar transactions in arm's-length dealings with a Person which is not such a
stockholder or Affiliate and, if such transaction or series of transactions
involves payment for services of such a stockholder or Affiliate, (x) for
amounts greater than $10 million and less than $15 million per annum, the
Company shall deliver an Officers' Certificate to the Trustee certifying that
such Shareholder/Affiliate Transaction complies with clause (b) above or (y) for
amounts equal to or greater than $15 million per annum, then (A) a majority of
the disinterested members of the Board of Directors shall in good faith
determine that such payments are fair consideration for the services performed
or to be performed (evidenced by a Board Resolution) or (B) the Company must
receive a favorable opinion from a nationally recognized investment banking firm
chosen by the Company or, if no such investment banking firm is in a position to
provide such opinion, a similar firm chosen by the Company (having expertise in
the specific area which is the subject of the opinion), that such payments are
fair consideration for the services performed or to be performed (a copy of
which shall be delivered to the Trustee); provided that the foregoing
requirements shall not apply to Shareholder/Affiliate Transactions involving the
purchase or sale of crude oil in the ordinary course of the Company's business,
so long as such transactions are priced in line with the market price of a crude
benchmark and the pricing of such transactions are equivalent to the pricing of
comparable transactions with unrelated third parties; and provided further that
the Gulf Payments shall not be deemed a Shareholder/Affiliate Transaction.
Section 9.12. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, issue, incur, assume, guarantee or become
liable for in any other manner, contingently or otherwise, or extend the
maturity of or become responsible for the payment of (collectively, "incur") any
Indebtedness (including Acquired Debt) other than (i) the Securities
60
(whether issued in exchange for Exchangeable Preferred Stock or in lieu of cash
interest) and (ii) Permitted Indebtedness, unless after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
therefrom, the Company's Consolidated Operating Cash Flow Ratio is greater than
2 to 1. Notwithstanding the foregoing, the Company's Unrestricted Subsidiaries
may incur Non-Recourse Debt, provided, however, that if any such Indebtedness
ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall
be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary
of the Company.
Section 9.13. Limitation on Certain Indebtedness
The Company may not incur or permit to exist any Indebtedness that is
by its terms both (i) subordinate in right of payment to any Senior Debt and
(ii) senior in right of payment to the Securities, if issued, in each case other
than by reason of its maturity. The Company may not incur or permit to exist any
Indebtedness that is by its terms subordinate in right of payment to the
Securities unless such Indebtedness constitutes Subordinated Debt.
Section 9.14. Limitation on Sale of Capital Stock of Restricted Subsidiaries.
The Company shall not permit (i) any Person (other than the Company or
any of its Wholly Owned U.S. Restricted Subsidiaries) to own any Capital Stock
of Xxxxx, or (ii) any Person (other than the Company or any of its Restricted
Subsidiaries) to own 50% or more of the Capital Stock of any of its Restricted
Subsidiaries other than Xxxxx; provided, however, that this Section 9.14 shall
not prohibit (a) the issuance and sale of all, but not less than all, of the
issued and outstanding Capital Stock of any Restricted Subsidiary owned by the
Company or any of its Restricted Subsidiaries in compliance with the other
provisions of this Indenture, (b) the ownership by directors of director's
qualifying shares or (c) the issuance and sale of nonvoting, nonconvertible
preferred stock of any Restricted Subsidiary, provided that the aggregate amount
of all nonvoting, nonconvertible preferred stock of Restricted Subsidiaries does
not exceed 5% of Consolidated Net Tangible Assets of the Company.
Section 9.15. Limitation on Issuance of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee or secure the payment of any Indebtedness of the
Company that is expressly by its terms subordinate or junior in right of payment
(other than by reason of maturity) to any other Indebtedness of the Company.
Section 9.16. Other Agreements.
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into or become a party (including, without limitation, as an
assignee or successor) to any agreement (including, without limitation, a
refinancing or refunding of the Xxxxx Credit Agreement) that would conflict with
this Indenture.
Section 9.17. Limitation on Liens.
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The Company may not, and may not permit any Subsidiary of the Company
to, incur or suffer to exist any Lien on or with respect to any property or
asserts now owned or hereafter acquired to secure any Indebtedness of the
Company that is expressly by its terms subordinate or junior in right of payment
(other than by reason of maturity) to any other debt of the Company without
making, or causing such Subsidiary to make, effective provision for securing the
Securities (x) equally and ratably with such Indebtedness as to such property or
assets for so long as such Indebtedness shall be so secured or (y) in the event
such Indebtedness is subordinate in right of payment (other than by reason of
maturity) to the Securities, prior to such Indebtedness as to such property or
assets for so long as such Indebtedness shall be so secured.
Section 9.18. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, make any Asset Disposition unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such disposition (or
in the case of a lease, over the term of such lease) at least equal to the fair
market value of the shares or assets disposed of (which shall be as determined
in good faith by the Board of Directors and evidenced by a Board Resolution),
and (ii) at least 75% of the consideration for such disposition consists of cash
or Cash Equivalents; provided that the following shall be deemed to be cash for
purposes of this covenant: (1) the amount of any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated to the Exchangeable Debentures)
that are assumed by the transferee of any such assets, and (2) any notes or
other obligations received by the Company or such Restricted Subsidiary from a
transferee that are immediately converted by the Company or such Restricted
Subsidiary into cash; provided, further, that the 75% limitation referred to
above in clause (ii) shall not apply to any disposition of assets in which the
cash portion of such consideration received therefor on an after-tax basis,
determined in accordance with the foregoing proviso, is equal to or greater than
what the after-tax net proceeds would have been had such transaction complied
with the aforementioned 75% limitation.
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Within 360 days of any Asset Disposition, the Company may elect to (i)
apply the Net Available Proceeds from such Asset Disposition to permanently
redeem or repay Indebtedness of the Company or any Restricted Subsidiary, other
than Indebtedness of the Company which is subordinated to the Securities, or
(ii) apply the Net Available Proceeds from such Asset Disposition to invest in
assets related to the Principal Business of the Company. Pending the final
application of any such Net Available Proceeds, the Company may temporarily
invest such Net Available Proceeds in any manner permitted by the Exchange
Indenture. Any Net Available Proceeds from an Asset Disposition not applied or
invested as provided in the first sentence of this paragraph shall be deemed to
constitute "Excess Proceeds."
As soon as practical, but in no event later than 10 Business Days
after any date (an "Asset Disposition Trigger Date") that the aggregate amount
of Excess Proceeds exceeds $20 million, the Company will commence an Offer (as
described below under "Procedures for Offers") to purchase the maximum principal
amount of Securities that may be purchased out of the Excess Proceeds, at an
Offer price in cash in an amount equal to 100% of the principal amount thereof,
plus accrued and unpaid interest, including Additional Interest, to the date of
purchase. To the extent that any Excess Proceeds remain after completion of an
Offer, the Company may use the remaining amount for general corporate purposes.
Upon completion of such Offer, the amount of Excess Proceeds shall be reset to
zero.
Section 9.19. Limitation on Sale of Capital Stock of Restricted Subsidiaries.
The Company shall not permit (i) any Person (other than the Company or
any of its Wholly-Owned Restricted Subsidiaries) to own any Capital Stock of
Xxxxx, or (ii) any Person (other than the Company or any of its Restricted
Subsidiaries) to own 50% or more of the Capital Stock of any of its Restricted
Subsidiaries other than Xxxxx; provided, however, that this covenant shall not
prohibit (a) the issuance and sale of all, but not less than all, of the issued
and outstanding Capital Stock of any Restricted Subsidiary owned by the Company
or any of its Restricted Subsidiaries in compliance with the other provisions of
this Indenture, (b) the ownership by directors of director's qualifying shares
or (c) the issuance and sale of nonvoting, nonconvertible preferred stock of any
Restricted Subsidiary, provided that the aggregate amount of all nonvoting,
nonconvertible preferred stock of Restricted Subsidiaries does not exceed 5% of
Consolidated Net Tangible Assets of the Company.
Section 9.20. Limitation on Issuance of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee or secure the payment of any Indebtedness of the
Company that is expressly by its terms subordinate or junior in right of payment
(other than by reason of maturity) to any other Indebtedness of the Company.
Section 9.21. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 9.06 to 9.18, inclusive, with
respect to the Securities 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
63
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision 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 term, provision or condition shall remain in full force and
effect; provided, however, with respect to an Offer to purchase as to which an
Offer has been mailed, no such waiver may be made or shall be effective against
any Holder tendering Securities pursuant to such Offer, and the Company may not
omit to comply with the terms of such Offer as to such Holder.
ARTICLE 10.
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REDEMPTION OF SECURITIES
------------------------
Section 10.01. 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 October 1, 2002 at
the Redemption Prices specified in the form of Security hereinbefore set forth,
together with accrued and unpaid interest to the Redemption Date.
In addition, the Company may, at its option, use the Net Available
Proceeds of one or more Equity Offerings to redeem for cash the aggregate
principal amount of the Securities, in whole or in part, whether initially
issued or issued in payment of interest obligations thereon, at a redemption
price equal to 107% prior to October 1, 1998, 108% thereafter but prior to
October 1, 1999 and 109% thereafter but prior to October 1, 2000 of the
aggregate principal amount so redeemed, plus accrued interest to the Redemption
Date. Any such redemption will be required to occur on or prior to 90 days after
the receipt by the Company of the proceeds of any such Equity Offering and upon
not less than 30 nor more than 60 days' notice mailed to each holder of
Securities to be redeemed at such holder's address appearing in the Company's
Security Register, in principal amounts of $1,000 or an integral multiple of
$1,000. The Company may not use the Net Available Proceeds of any Equity
Offerings which alone or combined with a related series of transactions result
in a Change of Control to redeem Securities pursuant to this paragraph.
Section 10.02. Applicability of Article.
Redemption of the Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section 10.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 10.01 shall be evidenced by a Board Resolution, which Board Resolution
shall be delivered to the Trustee at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee). In case of any redemption at the election of the Company of less than
all the Securities, the Company shall notify the Trustee of such
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Redemption Date and of the principal amount of Securities to be redeemed upon
delivery of the Board Resolution related to such redemption.
Section 10.04. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or by such method as the Trustee shall deem fair
and appropriate (and in a manner that complies with applicable legal and
securities exchange requirements, if any) and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$1,000.
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.
In the event that the Company is required to make an Offer to purchase
pursuant to Sections 10.09 and 9.18 and the amount available for such Offer is
not an integral multiple of $1,000, the Trustee shall promptly refund to the
Company any remaining excess proceeds, which shall be less than $1,000.
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 10.05. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed and
that, unless the
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Company defaults in making the redemption payment, interest thereon will
cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
(7) if any of the Securities are being redeemed in part, that on or
after the redemption date a new Security in principal amount equal to the
unredeemed portion thereof will be issued,
(8) the provision of the Securities pursuant to which the Securities
called for redemption are being redeemed,
(9) the aggregate principal amount of Securities that are being
redeemed, and
(10) the CUSIP number of the Securities that are being redeemed.
Notice of redemption of Securities to be redeemed 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 10.06. Deposit of Redemption Price.
On or prior to 11:00 a.m. New York City time on 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 9.03) 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.
Section 10.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall not 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 2.12.
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 prescribed
therefor in the Security.
Section 10.08. Securities Redeemed in Part.
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Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, 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.
Section 10.09. Offer to Purchase.
Within 30 days following a Change of Control and on any Asset
Disposition Trigger Date, the Company shall mail to each holder of Securities,
at such holder's registered address a notice stating: (i) that an offer (an
"Offer") is being made as a result of a Change of Control or one or more Asset
Dispositions, the length of time the Offer shall remain open, and the maximum
aggregate principal amount of Securities that shall be accepted for payment
pursuant to such Offer, (ii) the purchase price, the amount of accrued and
unpaid interest (including Additional Interest) as of the purchase date, and the
purchase date (the "Purchase Date"), (iii) in the case of a Change of Control,
the circumstances and material facts regarding such Change of Control, to the
extent known to the Company (including, but not limited to, information with
respect to pro forma and historical financial information after giving effect to
such Change of Control, and information regarding the Person or Persons
acquiring control) and (iv) such other information required by the Exchange
Indenture and applicable laws and regulations.
On the Purchase Date for any Offer, the Company shall (1) in the case
of an Offer resulting from a Change of Control, accept for payment all
Securities tendered pursuant to such Offer and, in the case of an Offer
resulting from one or more Asset Dispositions, accept for payment the maximum
principal amount of Securities tendered pursuant to such Offer than can be
purchased out of Excess Proceeds from such Asset Dispositions, (2) deposit with
the Paying Agent the aggregate purchase price of all Securities accepted for
payment and any accrued and unpaid interest, including Additional Interest, on
such Securities as of the Purchase Date, and (3) deliver or cause to be
delivered to the Trustee all Securities tendered pursuant to the Offer. If less
than all Securities tendered pursuant to any Offer are accepted for payment by
the Company for any reason, selection of the Securities to be purchased shall be
in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, if the Securities are
not so listed, by lot or by such method as the Trustee shall deem fair and
appropriate; provided that Securities accepted for payment in part shall only be
purchased in integral multiples of $1,000. The Paying Agent shall promptly mail
to each holder of Securities accepted for payment an amount equal to the
Purchase price for such Securities plus any accrued and unpaid interest,
including Additional Interest thereon, the Trustee shall promptly authenticate
and mail to such holder of Securities accepted for payment in part new
Securities equal in principal amount to any unpurchased portion of the
Securities, and any Securities not accepted for payment in whole or in part
shall be promptly returned to the holder thereof. On and after a Purchase Date,
interest shall cease to accrue on the Securities accepted for payment. The
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Company shall announce the results of the Offer to holders of the Securities on
or as soon as practicable after the Purchase Date.
The Company shall comply with all applicable requirements of Rule 14e-
1 under the Exchange Act and all other applicable securities laws and
regulations thereunder, to the extent applicable, in connection with any Offer.
Other than as specifically provided in this Section 10.09, any
purchase pursuant to this Section 10.09 shall be made pursuant to the provisions
of Sections 10.01 through 10.08 hereof.
ARTICLE 11.
-----------
SUBORDINATION
-------------
Section 11.01. Agreement to Subordinate
The Company agrees, and each Securityholder by accepting a Security
agrees, that the indebtedness evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article, to
the prior payment in full of all Senior Debt, and that the subordination is for
the benefit of the holders of Senior Debt. The Trustee's fees, expenses and
indemnity payments, as provided for in Section 5.07 hereof, are not to be
subordinated under this Section 11.01.
Section 11.02. Certain Definitions
"Debt" of any person means any indebtedness, contingent or otherwise,
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit, or representing the balance deferred and unpaid of the purchase price of
any property or interest therein, except any such balance that constitutes a
trade payable, if and to the extent such indebtedness would appear as a
liability upon a balance sheet of such person prepared on a consolidated basis
in accordance with generally accepted accounting principles.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
"Senior Debt" means (a) the principal of (premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, Indebtedness outstanding pursuant to the 10 7/8% Note
indenture and the Zero Coupon Note indenture, (b) payment obligations of the
Company under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements entered into to hedge Indebtedness
Incurred under the 10 7/8% Note indenture and the Zero Coupon Note indenture or
any renewal, refunding, refinancing or extension thereof, (c) all other
Indebtedness
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for money borrowed of the Company referred to in the definition of Indebtedness,
and (d) all renewals, extensions, modifications, refinancings, refundings and
amendments of any Indebtedness referred to in Clause (a), (b) or (c) above,
unless but only to the extent, in the case of any particular Indebtedness
referred to in Clause (a), (b) or (c) above, (A) such Indebtedness is owed to a
Subsidiary of the Company, (B) the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness is not superior in right of payment to the Securities, (C) such
Indebtedness is incurred in violation of the Exchange Indenture, or (D) such
Indebtedness is subordinate in right of payment in respect to any other
Indebtedness of the Company.
For purposes of this Article 11, a distribution may consist of cash,
securities or other property, by set-off or otherwise.
Section 11.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of and interest (including interest accruing after
the commencement of any such proceeding) to the date of payment on the Senior
Debt before Securityholders shall be entitled to receive any payment of
principal of or interest on Securities; and
(2) until the Senior Debt is paid in full in cash, any distribution
to which Securityholders would be entitled but for this Article shall be made to
holders of Senior Debt as their interests may appear, except that
Securityholders may receive securities that are subordinated to Senior Debt to
at least the same extent as the Securities.
Section 11.04. Default on Senior Debt
Upon the final maturity of any Senior Debt by lapse of time,
acceleration or otherwise, all such Senior Debt shall first be paid in full, or
such payment duly provided for in cash or in a manner satisfactory to the
holders of such Senior Debt, before any payment is made by the Company or any
person acting on behalf of the Company on account of the principal or interest
of the Securities.
The Company may not pay principal of or interest on the Securities and
may not acquire any Securities for cash or property (other than capital stock of
the Company or other securities of the Company that are subordinated to Senior
Debt to at least the same extent as the Securities) if:
(1) a default on Senior Debt occurs and is continuing that
permits holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 11.12. If the Company receives any such notice, a
subsequent notice received within nine
69
months thereafter relating to the same issue of Senior Debt shall not be
effective for purposes of this Section.
The Company shall resume payments on the Securities and may acquire
them when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default
is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
Section 11.05. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company shall pay the Securities when 120 days pass after the
acceleration occurs if this Article permits the payment at that time; provided,
however, that if no Senior Debt is outstanding at the time of such acceleration
the Company shall pay the Securities in accordance with the provisions of
Article 4.
Section 11.06. When Distribution Must Be Paid Over
In the event that the Company shall make any payment to the Trustee on
account of the principal or interest on the Securities at a time when such
payment is prohibited by Section 11.03 or 11.04, such payment shall be held by
the Trustee, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Debt (pro rata as to each of such holders on
the basis of the respective amounts of Senior Debt held by them) or their
Representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Senior Debt
remaining unpaid to the extent necessary to pay all Senior Debt in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
If a distribution is made to Securityholders that because of this
Article should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Debt and pay it over
to them as their interests may appear.
Section 11.07. Notice by Company
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of principal of or
interest on the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
provided in this Article. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 5.07.
Section 11.08. Subrogation
70
After all Senior Debt is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the Securityholders have been applied to
the payment of Senior Debt. A distribution made under this Article to holders of
Senior Debt which otherwise would have been made to Securityholders is not, as
between the Company and Securityholders, a payment by the Company on Senior
Debt.
Section 11.09. Relative Rights.
This Article defines the relative rights of Securityholders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Securityholders and creditors
of the Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Debt to receive distributions otherwise payable
to Securityholders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a Default or Event
of Default.
Section 11.10. Subordination May Not Be Impaired by Company
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 11.11. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Section 11.12. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a payment
of principal of or interest on the Securities to violate this Article. Only the
Company, a Representative or a holder of an issue of Senior Debt that has no
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may
do the same with like rights.
71
ARTICLE 12.
-----------
CHANGE OF CONTROL TRIGGERING EVENT
----------------------------------
Section 12.01. Change of Control Triggering Event.
In the event that there shall occur a Change of Control Triggering
Event, then the Company shall make an Offer in accordance with Section 10.09
hereof to purchase all or any part (equal to $1000 or an integral multiple
thereof) of each Holder's Securities at a purchase price equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the date
of purchase.
ARTICLE 13.
-----------
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
Section 13.01. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect
to have either Section 13.02 or Section 13.03 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Thirteen.
Section 13.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities, on and after
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 13.04 and
as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 2.10, 2.06, 2.07, 9.02 and 9.03, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Thirteen. Subject
to compliance with this Article Thirteen, the Company may exercise its option
under this Section 13.02 notwithstanding the prior exercise of its option under
Section 13.03.
Section 13.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 9.04, 9.06 through 9.20, inclusive, Article Ten, and
clauses (i), (ii), (iv) and (v) of Section 7.01 and (ii) the
72
occurrence of an event specified in Sections 4.01(3) (with respect to such
clauses of Section 7.01), 501(4) (with respect to any of Sections 9.06 through
9.20, inclusive) 4.01(5) and 4.01(6) shall not be deemed to be an Event of
Default (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, Clause or Article, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section, Clause or Article or by reason
of any reference in any such Section, Clause or Article to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.09 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any) and each installment of interest on the
Securities on the Stated Maturity of such principal in accordance with
the terms of this Indenture and of such Securities. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct.
obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian
for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
73
(2) In the case of an election under Section 13.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 13.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
4.01(7) and (8) are concerned, at any time during the period ending on
the 90th day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(6) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of the Trust Indenture Act).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 13.02 or the covenant defeasance under Section 13.03 (as
the case may be) have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the
74
Investment Company Act of 1940, as amended, or such trust shall be
qualified under such act or exempt from regulation thereunder.
(10) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passing of 90 days following
such deposit, the trust funds will not be subject to the effect of any
proceeding or any bankruptcy, insolvency, reorganization, or similar
laws regarding creditors' rights generally.
Section 13.05. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 9.03, all
money and U.S. Government obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 13.05, the "Trustee") pursuant to Section 13.04 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee its officers,
directors, employees and agents against any tax, fee or other charge imposed on
or assessed against the U.S. Government Obligations deposited pursuant to
Section 13.04 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities. The indemnity of this Section 13.05 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.02 or 13.03 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 13.02 or 13.03;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or any applicable interest on any Security following the
reinstatement of its obligations, the Company
75
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent.
76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
XXXXX USA, INC.
By___________________________
Xxxx X. Xxxxxx
President and Chief Executive Officer
Attest:
_______________________________ (SEAL)
Bankers Trust Company
as Trustee
By___________________________________
Authorized Signatory
Attest:
_____________________________ (SEAL)
77
TABLE OF CONTENTS
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture
Page
----
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........ 1
Section 1.01. Definitions................................................. 1
Section 1.02. Compliance Certificates and Opinions........................ 20
Section 1.03. Form of Documents Delivered to Trustee...................... 20
Section 1.04. Acts of Holders; Record Dates............................... 21
Section 1.05. Notices, Etc., to Trustee and Company....................... 22
Section 1.06. Notice to Holders; Waiver................................... 22
Section 1.07. Conflict with Trust Indenture Act........................... 23
Section 1.08. Effect of Headings and Table of Contents.................... 23
Section 1.09. Successors and Assigns...................................... 23
Section 1.10. Separability Clause......................................... 23
Section 1.11. Benefits of Indenture....................................... 23
Section 1.12. Governing Law............................................... 23
Section 1.13. Legal Holidays.............................................. 23
Section 1.14. No Recourse Against Others.................................. 24
ARTICLE 2. THE SECURITIES................................................. 24
Section 2.01. Form and Dating............................................. 24
Section 2.02. Execution and Authentication................................ 25
Section 2.03. Registrar and Paying Agent.................................. 25
Section 2.04. Paying Agent to Hold Money in Trust......................... 26
i
Section 2.05. Holder Lists..................................................... 26
Section 2.06. Transfer and Exchange............................................ 26
Section 2.07. Replacement Securities........................................... 32
Section 2.08. Outstanding Securities........................................... 32
Section 2.09. Treasury Securities.............................................. 32
Section 2.10. Temporary Securities............................................. 33
Section 2.11. Cancellation..................................................... 33
Section 2.12. Defaulted Interest............................................... 33
ARTICLE 3. SATISFACTION AND DISCHARGE.......................................... 33
Section 3.01. Satisfaction and Discharge of Indenture.......................... 34
Section 3.02. Application of Trust Money....................................... 35
ARTICLE 4. REMEDIES............................................................ 35
Section 4.01. Events of Default................................................ 35
Section 4.02. Acceleration of Maturity; Rescission and Annulment............... 37
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee.. 38
Section 4.04. Trustee May File Proofs of Claim................................. 39
Section 4.05. Trustee May Enforce Claims Without Possession of Securities...... 39
Section 4.06. Application of Money Collected................................... 39
Section 4.07. Limitation on Suits.............................................. 40
Section 4.08. Unconditional Right of Holders to Receive Principal, Premium and
Interest....................................................... 40
Section 4.09. Restoration of Rights and Remedies............................... 40
Section 4.10. Rights and Remedies Cumulative................................... 41
Section 4.11. Delay or Omission Not Waiver..................................... 41
Section 4.12. Control by Holders............................................... 41
Section 4.13. Waiver of Past Defaults.......................................... 41
Section 4.14. Undertaking for Costs............................................ 42
Section 4.15. Waiver of Stay, Extension or Usury Laws.......................... 42
ii
ARTICLE 5. THE TRUSTEE..................................................... 42
Section 5.01. Certain Duties and Responsibilities......................... 42
Section 5.02. Notice of Defaults.......................................... 43
Section 5.03. Certain Rights of Trustee................................... 43
Section 5.04. Not Responsible for Recitals or Issuance of Securities...... 44
Section 5.05. May Hold Securities......................................... 44
Section 5.06. Money Held in Trust......................................... 44
Section 5.07. Compensation and Reimbursement.............................. 44
Section 5.08. Administrative Expense...................................... 45
Section 5.09. Disqualification; Conflicting Interests..................... 45
Section 5.10. Corporate Trustee Required; Eligibility..................... 46
Section 5.11. Resignation and Removal; Appointment of Successor........... 46
Section 5.12. Acceptance of Appointment by Successor...................... 47
Section 5.13. Merger, Conversion, Consolidation or Succession to Business. 48
Section 5.14. Preferential Collection of Claims Against Company........... 48
Section 5.15. Appointment of Authenticating Agent......................... 48
ARTICLE 6. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............... 50
Section 6.01. Company to Furnish Trustee Names and Addresses of Holders... 50
Section 6.02. Preservation of Information; Communications to Holders...... 50
Section 6.03. Reports by Trustee.......................................... 50
Section 6.04. Reports by Company.......................................... 50
ARTICLE 7. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............ 51
Section 7.01. Company May Consolidate, Etc., Only on Certain Terms........ 51
Section 7.02. Successor Substituted....................................... 51
ARTICLE 8. SUPPLEMENTAL INDENTURES......................................... 52
Section 8.01. Supplemental Indentures Without Consent of Holders.......... 52
Section 8.02. Supplemental Indentures with Consent of Holders............. 52
iii
Section 8.03. Execution of Supplemental Indentures........................ 53
Section 8.04. Effect of Supplemental Indentures........................... 53
Section 8.05. Conformity with Trust Indenture Act......................... 54
Section 8.06. Reference in Securities to Supplemental indentures.......... 54
Section 8.07. Notice of Supplemental Indentures........................... 54
ARTICLE 9. COVENANTS...................................................... 54
Section 9.01. Payment of Principal, Premium and Interest.................. 54
Section 9.02. Maintenance of Office or Agency............................. 54
Section 9.03. Money for Securities Payments to Be Held in Trust........... 55
Section 9.04. Statement by Officers as to Default......................... 56
Section 9.05. Existence................................................... 57
Section 9.06. Maintenance of Properties................................... 57
Section 9.07. Payment of Taxes and Other Claims........................... 57
Section 9.08. Provision of Financial Information.......................... 57
Section 9.09. Limitation on Restricted Payments........................... 58
Section 9.10. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries......................... 59
Section 9.11. Limitation on Transactions with Shareholders
and Affiliates............................................ 60
Section 9.12. Limitation on Indebtedness.................................. 61
Section 9.13. Limitation on Certain Indebtedness.......................... 61
Section 9.14. Limitation on Sale of Capital Stock of
Restricted Subsidiaries................................... 61
Section 9.15. Limitation on Issuance of Guarantees of Indebtedness........ 61
Section 9.16. Other Agreements............................................ 61
Section 9.17. Limitation on Liens......................................... 62
Section 9.18. Limitation on Certain Asset Dispositions.................... 62
Section 9.19. Limitation on Sale of Capital Stock of
Restricted Subsidiaries................................... 63
Section 9.20. Limitation on Issuance of Guarantees of Indebtedness........ 63
Section 9.21. Waiver of Certain Covenants................................. 63
ARTICLE 10. REDEMPTION OF SECURITIES...................................... 64
iv
Section 10.01. Right of Redemption......................................... 64
Section 10.02. Applicability of Article.................................... 64
Section 10.03. Election to Redeem; Notice to Trustee....................... 64
Section 10.04. Selection by Trustee of Securities to Be Redeemed........... 65
Section 10.05. Notice of Redemption........................................ 65
Section 10.06. Deposit of Redemption Price................................. 66
Section 10.07. Securities Payable on Redemption Date....................... 66
Section 10.08. Securities Redeemed in Part................................. 67
Section 10.09. Offer to Purchase........................................... 67
ARTICLE 11. SUBORDINATION.................................................. 68
Section 11.01. Agreement to Subordinate.................................... 68
Section 11.02. Certain Definitions......................................... 68
Section 11.03. Liquidation; Dissolution; Bankruptcy........................ 69
Section 11.04. Default on Senior Debt...................................... 69
Section 11.05. Acceleration of Securities.................................. 70
Section 11.06. When Distribution Must Be Paid Over......................... 70
Section 11.07. Notice by Company........................................... 70
Section 11.08. Subrogation................................................. 71
Section 11.09. Relative Rights............................................. 71
Section 11.10. Subordination May Not Be Impaired by Company................ 71
Section 11.11. Distribution or Notice to Representative.................... 71
Section 11.12. Rights of Trustee and Paying Agent.......................... 71
ARTICLE 12. CHANGE OF CONTROL TRIGGERING EVENT............................. 72
Section 12.01. Change of Control Triggering Event.......................... 72
ARTICLE 13. DEFEASANCE AND COVENANT DEFEASANCE............................. 72
Section 13.01. Company's Option to Effect Defeasance or Covenant Defeasance. 72
Section 13.02. Defeasance and Discharge..................................... 72
v
Section 13.03. Covenant Defeasance......................................... 73
Section 13.04. Conditions to Defeasance or Covenant Defeasance............. 73
Section 13.05. Deposited Money and U.S. Government Obligations............. 75
Section 13.06. Reinstatement............................................... 76
EXHIBITS
--------
Exhibit A FORM OF SECURITY
EXHIBIT B CERTIFICATE OF TRANSFER
vi
-------------------------------------------------------------------------------
Xxxxx USA, Inc.
TO
Bankers Trust Company
Trustee
---------------------------
INDENTURE
Dated as of October 1, 1997
11 1/2% Subordinated Exchange Debentures due 2009
-------------------------------------------------------------------------------
EXHIBIT A
(Face of Security)
XXXXX USA, INC.
11 1/2% OF SUBORDINATED EXCHANGE
DEBENTURES DUE 2009
No. __________ $________
Xxxxx USA, Inc., 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 Bankers Trust Company, or registered assigns, the principal
sum of $63,000,000 in United States Dollars on October 1, 2009, and to pay
interest at the rate of 11 1/2% per annum from the Exchange Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for or, in cash (or, on or prior to October 1, 2002, in additional
Securities, at the option of the Company) in arrears on each April 1 and October
1 commencing with the first such date after the Exchange Date to the person
whose name the Security is registered at the close of business on the March 15
or September 15 next preceding such interest payment date, until the principal
hereof is paid or made available for payment; provided, however, in the event
that (i) the Company has not filed the registration statement relating to the
Exchange Offer within 90 days following the Closing Date, or (ii) such
registration statement (or, if applicable, the Resale Registration) has not
become effective within 180 days following the Closing Date, or (iii) the
Exchange Offer has not been consummated within 30 business days after the
effective date of the Exchange Offer Registration Statement, or (iv) any
registration statement required by the Registration Rights Agreement is filed
and declared effective but shall thereafter cease to be effective (except as
specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective (any such event
referred to in Clauses (i) through (iv), the "Registration Default"), then the
per annum interest rate on the Exchangeable Debentures will increase by 0.5%
("Special Interest") for the period from the occurrence of the Registration
Default until such time as no Registration Default is in effect (at which time
the interest rate will be reduced to its initial rate). If the Company has not
consummated the Exchange Offer (or, if applicable, the Resale Registration has
not become effective), within 270 days following the Closing Date, then the per
annum dividend rate on the Securities will increase by an additional 0.5% for so
long as the Company has not consummated the Exchange Offer (or until such Resale
Registration becomes effective).
Any accrued and unpaid interest on this Security upon the issuance of
an Exchange Security in exchange for this Security shall cease to be payable to
the Holder hereof
A-1
but such accrued and unpaid interest shall be payable on the next Interest
Payment Date for such Exchange Security to the Holder thereof on the related
Regular Record Date.
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 March 15 or September 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date at the
office or agency of the Company at [ ] maintained for such purpose and at
any other office or agency maintained by the Company for such purchase (any such
location being called a "Place of Payment"); provided, however, that at the
Option of the Company payment of interest may be made by check to the address of
the Person entitled thereto as such address shall appear on the Security
Register. Interest shall be payable in cash, except that on each Interest
Payment Date interest may be paid, at the Company's option, by the issuance of
additional Securities in an amount equal to the amount of such interest. Any
such interest not so punctually paid or duly provided, and interest on such
defaulted interest at the interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date and shall 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 ("Special Record Date") for the payment of such defaulted interest
to be fixed by the Company with the consent of the Trustee, notice whereof shall
be given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements (if applicable) of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such securities exchange, all as more fully provided in said Indenture.
If this Security is a Global Security, all payments in respect of this
Security will be payable to the Global Security Holder in its capacity as the
registered Holder under the Indenture. If this Security is not a Global
Security, payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the [ ], 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, or 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; provided, however, that payment by wire
transfer of immediately available funds will be required with respect to
principal of, premium, if any, and interest on, all Global Securities and all
other Securities the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent.
A-2
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 1, 1997
[SEAL] XXXXX USA, INC.
Attest:
By
---------------------------- -----------------------------
Name: Name:
Title: Title:
A-3
(Back of Security)
[Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]/1/
THE EXCHANGEABLE PREFERRED STOCK EVIDENCED HEREBY AND THE EXCHANGE
DEBENTURES ISSUABLE UPON EXCHANGE OF SUCH EXCHANGEABLE PREFERRED STOCK HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (4) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES.
This Security is one of a duly authorized issue of securities of the Company
designated as its 11 1/2% Subordinated Exchange Debentures due 2009 (herein
called the "Securities"), issued and to be issued in one or more series under an
Indenture, dated as of October 1, 1997 (as it may from time to time be
supplemented or amended by one or more supplemental indentures, herein called
the "Indenture"), between the Company, and Bankers Trust Company, 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
-----------
/1/ This paragraph should be included only if the Security is issued in global
form.
A-4
the Company and the Trustee of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The aggregate
principal amount of the Securities shall be limited to the liquidation
preference of the Exchangeable Preferred Stock, plus, without duplication,
accumulated and unpaid dividends, on the date or dates on which it is exchanged
for Securities (plus any additional Securities issued in lieu of cash interest).
The Securities are subject to redemption at the option of the Company,
in whole or in part at any time on or after October 1, 2002, upon not less than
30 nor more than 60 days' notice mailed to each holder of Securities to be
redeemed at such holder's address appearing on the Company' Securities
Registrar, in principal amounts of $1,000 or an integral multiple of $1,000, at
the following redemption prices (expressed as percentages of the principal
amount) if redeemed during the 12-month period commencing on October 1 of each
of the years set forth below, plus, in each case, accrued thereon to, but
excluding, the date of redemption.
Year Percentage
---- ----------
2002 105.750%
2003 103.833%
2004 101.917%
2005 and thereafter 100.000%
In addition, the Company may, at its option, use the Net Available
Proceeds of one or more Equity Offerings to redeem for cash the aggregate
principal amount of the Securities, in whole or in part, whether initially
issued or issued in payment of interest obligations thereon, at a redemption
price equal to 107% prior to October 1, 1998, 108% thereafter but prior to
October 1, 1999 and 109% thereafter but prior to October 1, 2000 of the
aggregate principal amount so redeemed, plus accrued interest to the Redemption
Date. Any such redemption will be required to occur on or prior to 90 days
after the receipt by the Company of the proceeds of any such Equity Offering and
upon not less than 30 nor more than 60 days' notice mailed to each holder of
Securities to be redeemed at such holder's address appearing in the Company's
Security Register, in principal amounts of $1,000 or an integral multiple of
$1,000. The Company may not use the Net Available Proceeds of any Equity
Offerings which alone or combined with a related series of transactions result
in a Change of Control to redeem Securities pursuant to this paragraph.
If less than all of the Securities are to be redeemed at any time,
selection of the Securities to be redeemed will be made by the Company in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed or, if the Securities are not listed
on a securities exchange, by lot or by any other method as the Trustee shall
deem fair and appropriate; provided that Securities redeemed in part will only
be redeemed in integral multiples of $1,000.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control Triggering Event occurs, the Company
shall be required to make an Offer to purchase for some or all of the Securities
in accordance with the terms of the Indenture.
A-5
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
In the event of redemption or purchase pursuant to a mandatory offer
to purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
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 principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. The Indenture also provides that, without
notice to or consent of any Holder, the Company and the Trustee may enter into
one or more supplemental indentures to, among other things, cure any ambiguity,
defect or inconsistency, provide for uncertificated securities in addition to or
in place of certificated Securities, or make any other change, in each case,
that does not adversely affect the rights of any Holder of a Security in any
material respect. 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 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.
As provided in the Indenture, the transfer of this Security is
registerable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
A-6
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiples thereof (other than
Securities issued in lieu of cash interest pursuant to paragraph 3 of the
Securities). 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 to the Holder 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.
No director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
conflicts of law principles thereof).
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Sections 10.09 and 9.18 of the Indenture, check the
box: [_]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Sections 10.09 and 9.18 of the Indenture, state the
amount (which must be $1,000 or integral multiples thereof):
$____________________.
Dated: ___________ Your Signature: _______________________________________
(Sign exactly as name appears on the other side of this
Security)
Signature Guarantee: ________________________________________________
(Signature must be guaranteed by a member firm
of a national securities exchange or a commercial
bank or trust company)
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated: Your Signature:
--------- --------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
A-9
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES/2/
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
-------- ---------------- ---------------- ---------------- ------------
-----------
/2/ This should be included only if the Security is issued in global form.
A-10
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of Securities held
in *________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[_] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
or
[_] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Securities and as provided in Section 2.06 of
such Indenture, the transfer of this Security does not require registration
under the Securities Act of 1933, as amended (the "Securities Act") because:*
[_] Such Security is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture).
[_] Such Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act in reliance on Rule 144A (in
satisfaction of Section 2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of the
Indenture) or pursuant to an exemption from registration in accordance with
Rule 904 under the Securities Act (in satisfaction of Section
2.06(a)(ii)(B) or Section 2.06(d)(i)(B) of the Indenture.)
[_] Such Security is being transferred in accordance with Rule 144 under the
Securities Act, or pursuant to an effective registration statement under
the Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture).
[_] Such Security is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other
than Rule 144A, 144 or Rule 904 under the Securities Act, and any
applicable state securities laws. An Opinion of Counsel to the effect that
such transfer does not require registration under the Securities Act
accompanies this Certificate (in satisfaction of Section 2.06(a)(ii)(C) or
Section 2.06(d)(i)(C) of the Indenture).
B-1
_________________________________________
[INSERT NAME OF TRANSFEROR]
Dated: ______________________________ By:
_____________________________________
*Check applicable box.
B-2
