Exhibit 4.10
EXECUTION COPY
CINCINNATI XXXX INC.,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
------------------------------------
INDENTURE
Dated As Of July 21, 1999
------------------------------------
Table of Contents */
Page
ARTICLE 1
DEFINITIONS..................................................2
Section 1.1..................................................2
Accelerated Amount...........................................2
Accreted Value...............................................2
Affiliate....................................................3
Authenticating Agent.........................................4
Board of Directors...........................................4
Business Day.................................................4
Cash Percentage..............................................4
Change of Control............................................4
Change of Control Offer......................................5
Change of Control Payment....................................5
Change of Control Payment Date...............................5
Code.........................................................5
Common Stock.................................................5
Company......................................................5
Conversion Price.............................................5
Conversion Ratio.............................................5
Conversion Shares............................................5
Current Market Price.........................................6
Designated Senior Debt.......................................7
Designated Value.............................................7
Event of Default.............................................7
Exchange Act.................................................8
Expiration Time..............................................8
Fair Market Value............................................8
Full Accreted Value..........................................8
Full Accretion Date..........................................8
Full Cash Payment............................................8
GAAP.........................................................8
Governmental Entity..........................................8
Holder, Holder of Notes and Noteholder.......................8
HSR Act......................................................8
Indebtedness.................................................8
Indenture....................................................9
Interest Payment Date........................................9
Investment Agreement.........................................9
--------------------------
*/ The Table of Contents comprising pages i through vi,
inclusive, is not part of this Indenture.
i
Page
Issuance Date.................................................9
IXC Transaction...............................................9
Market Price..................................................9
Material Adverse Effect.......................................9
NASDAQ .....................................................9
Note ....................................................10
Notes Register...............................................10
Notice of Default............................................10
NYSE ....................................................10
Officers' Certificate........................................10
Opinion of Counsel...........................................10
Optional Redemption..........................................10
Optional Redemption Date.....................................10
Optional Redemption Notice...................................10
Optional Redemption Price....................................10
Outstanding..................................................10
Payment Blockage Notice......................................11
Person ....................................................11
Principal....................................................11
Principal Corporate Trust Office of the Trustee..............11
Record Date..................................................11
Reference Date...............................................11
Regular Dividend.............................................12
Regular Record Date..........................................12
Responsible Officer..........................................12
SEC ....................................................12
Securities Act...............................................12
Semi-Annual Accrual Date.....................................12
Senior Debt..................................................12
Senior Debt Documents........................................13
Significant Subsidiaries.....................................13
Special Record Date..........................................13
Stated Maturity..............................................13
Subsidiary...................................................13
Trading Days.................................................13
Transaction..................................................14
Trust Indenture Act..........................................14
Trustee ....................................................14
U.S. Government Obligations..................................14
Voting Securities............................................14
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF NOTES...............................14
Section 2.1 Amount, Authentication and Delivery.............14
Section 2.2 Form of Security; Denominations.................15
Section 2.3 Form of Trustee's Certificate of Authentication.15
Section 2.4 Form of Authenticating Agent's Alternate
Certificate of Authentication...................16
Section 2.5 Notes in Global Form............................16
Section 2.6 Title and Terms.................................17
Section 2.7 Execution and Authentication....................18
Section 2.8 Exchange; Registration; Registration of
Transfer and Exchange...........................18
Section 2.9 Temporary Notes.................................21
Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes......21
Section 2.11 Cancellation of Surrendered Notes...............22
Section 2.12 Provisions of the Indenture and Notes for the
Sole Benefit of the Parties and the Noteholders.23
Section 2.13 CUSIP Numbers...................................23
Page
ARTICLE 3
[intentionally omitted]......................................23
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY..........................23
Section 4.1 Payment of Principal and Interest on Notes.23
Section 4.2 Maintenance of Office or Agency for Transfer,
Exchange and Payment of Notes...................23
Section 4.3 Appointment to Fill Vacancy in Office of
Trustee.........................................24
Section 4.4 Duties of Paying Agent..........................24
Section 4.5 [intentionally omitted].........................25
Section 4.6 [intentionally omitted].........................25
Section 4.7 Preservation of Corporate Existence.............25
Section 4.8 Payment of Taxes................................25
Section 4.9 Compliance with Laws............................25
Section 4.10 Original Issue Discount Information.............26
Section 4.11 Notices.........................................26
Section 4.12 Reservation of Shares...........................26
Section 4.13 Change of Control...............................26
Section 4.14 Dividends or Distributions......................29
Section 4.15 Maintenance of Properties.......................30
Section 4.16 Forbearance from Restrictions on Rights of
Holders of Notes................................30
ARTICLE 5
NOTEHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE......................................30
Section 5.1 Company to Furnish Trustee Information as
to Names and Addresses of Noteholders...........30
Section 5.2 Compliance with Section 312 of the Trust
Indenture Act...................................30
Section 5.3 Annual and Other Reports to be Filed by the
Company with Trustee............................31
Section 5.4 Trustee Reports to Noteholder...................32
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT..........................................32
Section 6.1 Events of Default Defined.......................32
Section 6.2 Acceleration....................................34
Section 6.3 Application of Moneys Collected by Trustee......36
Section 6.4 Limitation on Suits by Holders..................37
Section 6.5 Remedies Cumulative; Delay or Omission in
Exercise of Rights Not a Waiver of Default......37
Section 6.6 Control by Holders..............................38
Section 6.7 Trustee to Give Notice of Defaults Known to it,
but May Withhold in Certain Circumstances.......38
Section 6.8 Undertaking for Costs...........................38
Section 6.9 Waiver of Usury, Stay or Extension Law..........39
Page
ARTICLE 7
CONCERNING THE TRUSTEE.......................................39
Section 7.1 Certain Duties and Responsibilities.............39
Section 7.2 Certain Rights of Trustee.......................40
Section 7.3 Trustee Not Liable for Recitals in Indenture
or in Notes.....................................42
Section 7.4 May Hold Notes..................................42
Section 7.5 Moneys Held in Trust; Interest Not Payable
Except by Agreement.............................42
Section 7.6 Compensation, Reimbursement and Indemnity.......42
Section 7.7 Right of Trustee to Rely on Certificate of
Officers of the Company.........................43
Section 7.8 Trustee Acquiring Conflicting Interest..........43
Section 7.9 Requirements for Eligibility of Trustee.........43
Section 7.10 Resignation of Trustee..........................44
Section 7.11 Acceptance by Successor to Trustee..............45
Section 7.12 Successor to Trustee by Merger, Conversion,
Consolidation or Succession to Business.........46
Section 7.13 Preferential Collection of Claims Against the
Company.........................................46
Section 7.14 Appointment and Qualification of Authenticating
Agent...........................................46
ARTICLE 8
CONCERNING THE NOTEHOLDERS...................................47
Section 8.1 Form and Effectiveness of Noteholder Action.....47
Section 8.2 Who May be Deemed Owners of Notes...............48
Section 8.3 Notes Owned by the Company or Controlled
or Controlling Companies Disregarded for
Certain Purposes................................49
Section 8.4 Revocation of Action by Noteholders; Action
by Noteholder Binds Future Holders..............49
ARTICLE 9
SUPPLEMENTAL INDENTURES......................................49
Section 9.1 Supplemental Indentures Without Consent of
Noteholders.....................................49
Section 9.2 Modification of Indenture with Consent of
Note Holders....................................50
Section 9.3 Effect of Supplemental Indentures...............52
Section 9.4 Notes May Bear Notation of Changes by
Supplemental Indentures.........................52
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE....................53
Section 10.1 Consolidation and Merger of the Company and
Sale or Conveyance Permitted....................53
Section 10.2 Rights and Duties of Successor Corporation......53
Section 10.3 Opinion of Counsel..............................54
ARTICLE 11
SUBORDINATION................................................54
Section 11.1 Notes Subordinate to Senior Debt................54
Page
Section 11.2 Payment Over of Proceeds Upon Dissolution, Etc.54
Section 11.3 Prior Payment to Senior Debt Upon Acceleration.55
Section 11.4 Payment To Holders.............................56
Section 11.5 Payment Permitted If No Default................57
Section 11.6 Subrogation to Rights of Holders of Senior
Debt...........................................57
Section 11.7 Provisions Solely to Define Relative Rights....57
Section 11.8 No Waiver of Subordination Provisions..........58
Section 11.9 Reliance on Judicial Order or Certificate of
Liquidating Agent..............................58
Section 11.10 Certain Conversions Not Deemed Payment.........59
Section 11.11 Distribution To Be Paid Over...................59
Section 11.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness...................................59
ARTICLE 12
[intentionally omitted]......................................60
ARTICLE 13
OPTIONAL PREPAYMENT..........................................60
Section 13.1 Optional Redemption.............................60
ARTICLE 14
VOLUNTARY CONVERSION.........................................62
Section 14.1 Conversion.....................................62
Section 14.2 Procedure......................................62
Section 14.3 Antidilution...................................63
Section 14.4 No Adjustment..................................67
Section 14.5 Officers' Certificate..........................67
Section 14.6 Fractional Shares..............................67
Section 14.7 Reorganization, Etc............................67
Section 14.8 Notice of Certain Events.......................68
Section 14.9 Taxes..........................................69
Section 14.10 Trustee Adjustment Disclaimer..................69
ARTICLE 15
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.............................................69
Section 15.1 Satisfaction and Discharge of Indenture........69
Section 15.2 [intentionally omitted]........................70
Section 15.3 Repayment of Moneys Held by Paying Agent.......70
Section 15.4 Repayment of Moneys Held by Trustee............70
ARTICLE 16
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES............................70
Section 16.1 Incorporators, Shareholders, Officers,
Directors and Employees of the Company
Exempt from Individual Liability...............70
ARTICLE 17
MISCELLANEOUS PROVISIONS.....................................71
Page
Section 17.1 Successors and Assigns of the Company
Bound by Indenture.............................71
Section 17.2 Acts of Board, Committee or Officer of
Successor Corporation Valid....................71
Section 17.3 Surrender of Powers by the Company.............71
Section 17.4 Required Notices or Demands May be Served by
Mail...........................................71
Section 17.5 Officers' Certificate and Opinion of Counsel...71
Section 17.6 Payments Due on Non-business Days..............72
Section 17.7 Provisions Required by Trust Indenture Act to
Control........................................72
Section 17.8 Indenture May be Executed in Counterparts......72
Section 17.9 Governing Law..................................72
Section 17.10 Severability...................................73
CROSS REFERENCE SHEET*
between
the provisions of Sections 310 through 318(a) of the Trust Indenture Act of
1939, as amended, and the Indenture dated as of July 21, 1999, between
Cincinnati Xxxx Inc., Issuer, and The Bank of New York, Trustee:
Section of Act Section of Indenture
310(a)(1), (2) and (5)....................4.3 and 7.9
310(a)(3) and (4).........................Not Applicable
310(b)....................................4.3, 7.8 and 7.10(b)
310(c)....................................Not Applicable
311(a) and (b)............................Not Applicable
311(c)....................................Not Applicable
312(a)....................................5.1 and 5.2
312(b) and (c)............................5.2
313(a)....................................5.4(a)
313(b)(1).................................5.4(a)
313(b)(2).................................5.4(a)
313(c)....................................5.4(a)
313(d)....................................5.4(b)
314(a)....................................5.3
314(b)....................................Not Applicable
314(c)(1) and (2).........................17.5
314(c)(3).................................Not Applicable
314(d)....................................Not Applicable
314(e)....................................17.5
314(f)....................................Not Applicable
315(a), (c) and (d).......................7.1
315(b)....................................6.7
315(e)....................................6.8
316(a)(1).................................6.1 and 6.6
316(a)(2).................................Not Applicable
316(a) last sentence......................8.3
316(b)....................................6.4
316(c)....................................Not Applicable
317(a)....................................6.2
317(b)....................................4.4
318(a)....................................17.7
*This Cross Reference Sheet is not part of the Indenture.
THIS INDENTURE, dated as of July 21, 1999, between CINCINNATI XXXX
INC., an Ohio corporation (the "Company"), and THE BANK OF NEW YORK, a New
York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has entered
into an Investment Agreement, dated as of July 21, 1999, with Oak Hill Capital
Partners, L.P., a Delaware limited partnership, OHCP Ocean I, LLC, a Delaware
limited liability company, OHCP Ocean III, LLC, a Delaware limited liability
company, OHCP Ocean IV, LLC, a Delaware limited liability company, OHCP Ocean
V, LLC, a Delaware limited liability company, Oak Hill Securities Fund, L.P.,
a Delaware limited partnership, and Oak Hill Securities Fund II, L.P., a
Delaware limited partnership, and OHCP AIV I, L.P., a Delaware limited
partnership (the "Investment Agreement");
WHEREAS, pursuant to the Investment Agreement, the Company has
issued 6 3/4% Convertible Subordinated Notes with a final maturity of July 21,
2009 with an aggregate original issue price of $400 million (together with all
notes issued in connection with the substitution, replacement or transfer
thereof, the "Initial Notes"), upon the terms and subject to the conditions
set forth in the Investment Agreement and in the Initial Notes;
WHEREAS, pursuant to the Investment Agreement, the Company has
agreed to prepare, execute and deliver to a bank or trust company designated
by the Company an indenture providing for the issuance thereunder of notes
(together with all notes issued in connection with the substitution,
replacement or transfer thereof, the "Notes") in an aggregate principal amount
at maturity equal to the aggregate Full Accreted Value (as defined herein) of
the Initial Notes having substantially all the rights, benefits and privileges
carried by the Initial Notes;
WHEREAS, after the execution and delivery of this Indenture, upon
surrender of any Initial Notes to the Company in exchange therefor, the
Company will issue and deliver Notes having an aggregate principal amount at
maturity equal to the Full Accreted Value);
WHEREAS, the Notes and certificates of authentication to be borne by
the Notes are to be substantially in the forms attached as Appendix A;
WHEREAS, this Indenture will be subject to, and shall be governed
by, the provisions of the Trust Indenture Act (as defined herein) that are
required to be part of and to govern indentures qualified under the Trust
Indenture Act;
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by or on behalf of the
Trustee as in this Indenture provided, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed; and
WHEREAS, all acts and things necessary to make this Indenture a
valid, binding and legal obligation of the Company, and to constitute these
presents a valid indenture and agreement according to its terms, have been
done and performed;
NOW, THEREFORE:
In consideration of the premises and the acceptance of the Notes by
the Holders thereof, the Company covenants and agrees with the Trustee, for
the equal and proportionate benefit of the respective holders from time to
time of the Notes, as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 The terms defined in this Section 1.1 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1. All other terms used in
this Indenture which are defined in the Trust Indenture Act (as defined
herein), or which are by reference therein defined in the Securities Act (as
defined herein), shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture as originally executed.
Accelerated Amount has the meaning assigned to that term in Section
4.13.
Accreted Value means, for each $1,000 of original issue price of a
Note and for any specified date, the amount calculated pursuant to clause (i),
(ii), (iii) or (iv) below for the Notes, subject to adjustment in accordance
with Section 4.13:
(i) If the specified date occurs on one or more of the
following dates (each a "Semi-Annual Accrual Date"), the Accreted Value will
equal the amount set forth below for such Semi-Annual Accrual Date:
Semi-Annual Accreted
Accrual Date Value
------------ -----
January 21, 2000 $1,033.75
July 21, 2000 1,068.64
January 21, 2001 1,104.71
July 21, 2001 1,141.99
January 21, 2002 1,180.53
July 21, 2002 1,220.37
January 21, 2003 1,261.56
July 21, 2003 1,304.14
January 21, 2004 1,348.15
July 21, 2004 1,393.65
(ii) If the specified date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) the original issue
price of each Note and (b) an amount equal to the product of (1) the Accreted
Value for the first Semi-Annual Accrual Date less the original issue price of
such Note multiplied by (2) a fraction, the numerator of which is the number
of days elapsed from July 21, 1999 to the specified date, using a 360-day year
of twelve 30-day months, and the denominator of which is the number of days
from July 21, 1999 to the first Semi-Annual Accrual Date, using a 360-day year
of twelve 30-day months;
(iii) If the specified date occurs between two Semi-Annual
Accrual Dates, the Accreted Value will equal the sum of (a) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding such specified date and
(b) an amount equal to the product of (1) the Accreted Value for the
immediately following Semi-Annual Accrual Date less the Accreted Value for the
immediately preceding Semi-Annual Accrual Date multiplied by (2) a fraction,
the numerator of which is the number of days elapsed from the immediately
preceding Semi-Annual Accrual Date to the specified date, using a 360-day year
of twelve 30-day months, and the denominator of which is 180; or
(iv) If the specified date occurs on or after the last
Semi-Annual Accrual Date, the Accreted Value will equal the Full Accreted
Value.
Affiliate has the meaning ascribed to such term in Rule 12b-2
promulgated under the Exchange Act.
Authenticating Agent means the agent of the Trustee, if any, which
at the time shall be appointed and acting pursuant to Section 7.14.
Board of Directors means the Board of Directors or the Executive
Committee thereof of the Company as the context may require.
Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in the City of New York, New York are authorized
or required by law or executive order to close.
Cash Percentage has the meaning assigned to that term in Section
4.13(a).
Change of Control means the occurrence of any of the following:
(i) a tender offer shall be made and consummated for the
ownership of 30% or more of the outstanding voting securities of the Company;
(ii) the Company shall be merged or consolidated with another
corporation and as a result of such merger or consolidation less than 75% of
the outstanding voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the former shareholders of the Company,
other than Affiliates of any party to such merger or consolidation as the same
shall have existing immediately prior to such merger or consolidation;
(iii) the Company shall sell substantially all of its assets to
another corporation which is not a wholly owned subsidiary;
(iv) a person within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on December 5, 1988) of the Exchange Act shall
acquire 20% or more of the outstanding voting securities of the Company
(whether directly, indirectly, beneficially or of record), or a person within
the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on December 5, 1988) of the Exchange Act
controls in any manner the election of a majority of the directors of the
Company;
(v) within any period of two consecutive years commencing on or
after December 5, 1988, individuals who at the beginning of such period
constitute the Board of Directors cease for any reason to constitute a
majority thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by directors
representing at least two-thirds of the directors then in office who were
directors at the beginning of the period (for purposes hereof, ownership of
voting securities shall take into account and shall include ownership as
determined by applying the provisions of Rule 13(d)-3(d)(1)(i) pursuant to the
Exchange Act); or
(vi) a merger, consolidation or similar transaction (regardless
of whether the Company is a constituent corporation in such transaction and
other than those transactions of the type referred to in clause (ii) above)
with respect to which persons who were beneficial owners of voting securities
immediately prior to such transaction own less than 50% of the voting
securities (including securities of any successor corporation of the Company
having the ordinary power to vote in the election of directors of such
successor corporation) upon the consummation of such transaction.
For the avoidance of doubt (x) the terms being used in clauses (i), (ii),
(iii), (iv) and (v) of this definition of "Change of Control" shall have the
respective meanings for such terms as used in the Company's 1989 Stock Option
Plan as of the date hereof and (y) the IXC Transaction shall not be deemed to
be a Change of Control.
Change of Control Offer has the meaning assigned to that term in
Section 4.13.
Change of Control Payment has the meaning assigned to that term in
Section 4.13.
Change of Control Payment Date has the meaning assigned to that term
in Section 4.13.
Code means the Internal Revenue Code of 1986, as amended.
Common Stock means the common stock, par value $.01 per share, of
the Company and any other class of capital stock of the Company into which
such stock is reclassified or reconstituted.
Company means Cincinnati Xxxx Inc., an Ohio corporation, and,
subject to the provisions of Article Ten, shall also include its successors
and assigns.
Conversion Price has the meaning assigned to that term in Section
14.1.
Conversion Ratio has the meaning assigned to that term in Section
14.1.
Conversion Shares means the shares of Common Stock issued or
issuable upon conversion of the Notes.
Credit Agreement means the Credit Agreement, dated as of November 9,
1999, among the Company and IXC Communications Services, Inc., as Borrowers,
Citicorp USA, Inc., as Administrative Agent, Bank of America, N.A., as
Syndication Agent, and certain Lender Parties thereto.
Current Market Price per share means, on any date specified herein
for the determination thereof, (a) the average daily Market Price of the
Common Stock for those days during the period of ten consecutive Trading Days
ending on such date, and (b) if the Common Stock is not then listed or
admitted to trading on any national securities exchange or quoted in the
over-the-counter market, the Market Price such date, provided, however, that
(A) if the "ex" date (as hereinafter defined) for any event (other than the
event requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 14.3(a), 14.3(b), 14.3(c) (without regard
to the exceptions in clauses (A) through (C) therein), 14.3(d) or 14.3(e)
shall occur during the ten consecutive Trading Day period referred to in
clause (a) above, then the Market Price for each Trading Day prior to the "ex"
date for such other event shall be adjusted by dividing or multiplying (as the
case may be) such Market Price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other event (without
regard to the exceptions in clauses (A) through (C) of Section 14.3(c)), (B)
if the "ex" date for any event (other than the event requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 14.3(a), 14.3(b), 14.3(c) (without regard to the exceptions in clauses
(A) through (C) therein), 14.3(d), or 14.3(e) shall occur on or after the "ex"
date for the event requiring such computation and prior to the day in
question, the Market Price for each Trading Day on and after the "ex" date for
such other event shall be adjusted by dividing or multiplying (as the case may
be) such Market Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such other event
(without regard to the exceptions in clauses (A) through (C) of Section
14.3(c)) and (C) if the "ex" date for the event requiring such computation is
prior to the day in question, after taking into account any adjustment
required pursuant to clause (A) or (B) of this proviso, the Market Price for
each Trading Day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as determined by the
Board of Directors in a manner consistent with any determination of such value
for purposes of Section 14.3(c)) of the evidences of indebtedness, shares of
capital stock or assets being distributed applicable to one share of Common
Stock as of the close of business on the day before such "ex" date.
For purpose of this definition, the term "ex" date, (1) when used
with respect to any issuance or distribution, means the first date on which
the Common Stock trades, regular way, on the relevant exchange or in the
relevant market from which the Market Price was obtained without the right to
receive such issuance or distribution, (2) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades, regular way, on such exchange or in such market
after the time at which such subdivision or combination becomes effective and
(3) when used with respect to any tender or exchange offer means the first
date on which the Common Stock trades, regular way, on such exchange or in
such market after the expiration time of such tender or exchange offer.
Notwithstanding the foregoing, whenever successive adjustments to
the Conversion Price are called for pursuant to Section 14.3 and this
definition, such adjustments shall be made to the Current Market Price as may
be necessary or appropriate to effectuate the intent of Section 14.3 and this
definition and to avoid unjust or inequitable results, as determined by the
Board of Directors unless Holders of at least 51% of the aggregate Accreted
Value of the Notes outstanding request that the Company obtain an opinion of
an independent nationally recognized investment banking firm mutually agreed
by the Company and such Holders (the expense of which shall be borne equally
by the Company on the one hand and such Holders on the other), in which case
such adjustments shall be as determined by such investment banking firm.
Designated Senior Debt means any Senior Debt in which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which the Company is a party) expressly
provides that such Senior Debt shall be "Designated Senior Debt" for purposes
of this Indenture (provided that such instrument, agreement or other document
may place limitations and conditions on the right of such Senior Debt to
exercise the rights of Designated Senior Debt). If any payment made to any
holder of any Designated Senior Debt or its representative with respect to
such Designated Senior Debt is rescinded or must otherwise be returned by such
holder or representative upon the insolvency, bankruptcy or reorganization of
the Company or otherwise, the reinstated Senior Debt of the Company arising as
a result of such rescission or return shall constitute Designated Senior Debt
effective as of the date of such rescission or return.
Designated Value means, for each $1,000 original issue price of any
Note to be converted (or assumed to be converted) into Common Stock, (i) if
the conversion (or assumed conversion) occurs prior to the Full Accretion
Date, (x) for purposes of Sections 14.3(a), 14.7 and 4.14, (y) in connection
with a Change of Control or (z) on or after a record date and prior to the
related Interest Payment Date, in each case, the Accreted Value for $1,000 of
original issue price of such Note as of the date of determination, (ii) for
all other conversions prior to the Full Accretion Date, the Accreted Value for
$1,000 of original issue price of such Note as of the immediately preceding
Semi-Annual Accrual Date and (iii) at or after the Full Accretion Date, the
Full Accreted Value for $1,000 of original issue price of such Note.
Event of Default means any event specified in Section 6.1.
Exchange Act means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder.
Expiration Time has the meaning assigned to that term in Section
14.3(d).
Fair Market Value means, with respect to any property, the amount
which an informed and willing buyer under no compulsion to buy would pay an
informed and willing seller, under no compulsion to sell in an arm's length
transaction.
Full Accreted Value has the meaning assigned to that term in Section
2.6.
Full Accretion Date means July 21, 2004.
Full Cash Payment has the meaning assigned to that term in Section
4.13(a).
GAAP means generally accepted accounting principles in the United
States in effect from time to time.
Governmental Entity means any Federal, state, local or foreign
government, any court, administrative, regulatory or other governmental
agency, commission or authority or any non-governmental self-regulatory
agency, commission or authority.
Holder, Holder of Notes and Noteholder or other similar terms, mean
any person who is the registered holder of any Note.
HSR Act means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations of the Federal Trade
Commission thereunder.
Indebtedness of any person means (i) all obligations, whether or not
represented by bonds, debentures, notes or other securities, for the repayment
of money borrowed, (ii) all obligations for the deferred payment of the
purchase price of property or assets purchased, (iii) all guarantees,
endorsements, assumptions and other contingent obligations in respect of, or
to purchase or to otherwise acquire, indebtedness of others and (iv) all
indebtedness secured by any mortgage, pledge or lien existing on property
owned, subject to such mortgage, pledge or lien, whether or not the
indebtedness secured thereby shall have been assumed.
Indenture means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented and
shall include the forms and terms of the Notes.
Interest Payment Date has the meaning assigned to that term in
Section 2.6.
Investment Agreement has the meaning assigned to that term in the
recitals to this Indenture.
Issuance Date has the meaning assigned to that term in Section 14.3.
IXC Transaction means any merger, consolidation, business
combination or any similar transaction (by asset sale or otherwise) involving
the Company and IXC Communications, Inc., a Delaware corporation, or any of
their respective Subsidiaries.
Market Price means, per share of common stock or any other security
on any date specified herein: (a) if the common stock or such other security
is listed or admitted to trading on any national securities exchange, the
closing price of the common stock or such other security on such specified
date, or if the common stock or such other security is not then listed or
admitted to trading on any national securities exchange but is designated as a
national market system security, the last trading price of the common stock or
such other security on such specified date; or (b) if there shall have been no
trading on such specified date or if the common stock or such other security
is not so designated, the average of the reported closing bid and asked prices
of the common stock or such other security on such specified date as shown by
NASDAQ and reported by any member firm of the NYSE, selected by the Company.
If neither (a) nor (b) above is applicable, Market Price shall mean the Fair
Market Value per share determined in a manner consistent with the penultimate
sentence of Section 4.13(c).
Material Adverse Effect means, when used in connection with the
Company, any change, effect, event, occurrence, condition, development or
state of facts that is materially adverse to the business, assets, results of
operations, condition (financial or otherwise) or prospects of the Company and
its subsidiaries, taken as a whole, other than any change, effect, event,
occurrence, condition, development or state of facts (i) relating to the
economy or securities markets in general or (ii) relating to the industries in
which the Company operates in general and not specifically relating to the
Company.
NASDAQ means the National Market System of the Nasdaq Stock Market,
Inc. or any successor thereto.
Note has the meaning assigned that term in the recitals to this
Indenture.
Notes Register means the register or registers kept by the Company
as provided in Section 2.8.
Notice of Default has the meaning assigned to that term in Section
6.1.
NYSE means the New York Stock Exchange, Inc. or any successor
thereto.
Officers' Certificate means a certificate signed (i) by the Chairman
of the Board of Directors or a Vice Chairman of the Board of Directors or the
President or an Executive Vice President or Senior Vice President of the
Company and (ii) by the Chief Financial Officer, Treasurer or any Assistant
Treasurer or the Controller or the Secretary or any Assistant Secretary of the
Company. Each such certificate shall include the statements provided for in
Section 17.5, if and to the extent required by the provisions thereof.
Opinion of Counsel means an opinion in writing signed by legal
counsel, who may be an employee of or of counsel to the Company or the Trustee
or who may be other counsel satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 17.5, if and to the
extent required by the provisions thereof.
Optional Redemption has the meaning assigned to that term in Section
13.1.
Optional Redemption Date has the meaning assigned to that term in
Section 13.1.
Optional Redemption Notice has the meaning assigned to that term in
Section 13.1.
Optional Redemption Price has the meaning assigned to that term in
Section 13.1.
Outstanding means, when used with reference to Notes, subject to the
provisions of Section 8.3 and as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption
of which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or shall
have been set aside, segregated and held in trust by the Company for the
Holders of such Notes (if the Company shall act as its own paying agent);
provided that if such Notes, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Notes in substitution for which other Notes shall have been
authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.8 (except with respect to any such Note as to which proof
satisfactory to the
Trustee is presented that such Note is held by a person in whose hands such
Note is a legal, valid and binding obligation of the Company).
In determining prior to the Full Accretion Date whether the Holders
of the requisite principal amount of Outstanding Notes of any or all series
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of a Note that shall be deemed to be
Outstanding for such purposes shall be the Accreted Value of such Note.
Payment Blockage Notice has the meaning assigned to that term in
Section 11.4.
Person means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Entity or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
Principal, whenever used with reference to the Notes or any Note or
any portion thereof, shall be deemed to include the Accreted Value of the
Notes and premium, if any, payable on the Notes.
Principal Corporate Trust Office of the Trustee or other similar
term means the principal corporate trust office of the Trustee at which at any
particular time its corporate trust business shall be administered and shall
initially be at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
Record Date means, when used with respect to any Interest Payment
Date, shall have the meaning specified in Section 2.6.
Reference Date has the meaning assigned to that term in Section
14.3.
Regular Dividend means any nominal regular quarterly dividend
declared by the Board of Directors on the shares of the Common Stock.
Regular Record Date has the meaning assigned to that term in Section
2.6.
Responsible Officer means, when used with respect to the Trustee,
any vice president, any trust officer, any assistant trust officer, any
assistant secretary, any assistant treasurer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers, or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Indenture, and when used with respect to any Holder, an
executive officer of such Holder or persons performing functions similar to
those performed by an executive officer.
SEC means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder.
Semi-Annual Accrual Date has the meaning assigned to that term in
the definition of "Accreted Value."
Senior Debt means the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts (including collection expenses, attorney's fees and late
charges) owing with respect to, the following, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to become due,
outstanding at July 21, 1999 or thereafter incurred, created or assumed: (a)
indebtedness of the Company for money borrowed or evidenced by bonds,
debentures, notes, guarantees or similar instruments, (b) reimbursement,
prepayment and other obligations of the Company with respect to letters of
credit, bankers' acceptances and similar facilities issued for the account of
the Company, (c) every obligation of the Company issued or assumed as the
deferred purchase price of property or services purchased by the Company, (d)
obligations of the Company as lessee under leases required to be capitalized
on the balance sheet of the lessee under GAAP or which can be capitalized
under the Code, (e) obligations of the Company under interest rate and
currency swaps, caps, floors, collars or similar arrangements intended to
protect the Company against fluctuations in interest or currency exchange
rates, (f) all indebtedness for borrowed money of the Company secured by any
Lien on any property or asset owned or held by the Company regardless of
whether the indebtedness secured thereby shall have been assumed by the
Company or shall be non-recourse to the credit of the Company, (g) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by the Company (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property),
(h) indebtedness of others of the kinds described in the preceding clauses (a)
through (g) and all dividends and distributions of others in each case that
the Company has assumed, guaranteed or otherwise assured the payment thereof,
directly or indirectly (including guarantees of indebtedness for borrowed
money of any of its Subsidiaries), and/or (i) deferrals, renewals, extensions
and refundings of, or amendments, modifications or supplements to, any
indebtedness or obligation described in the preceding clauses (a) through (h)
whether or not there is any notice to or consent of the Holders; provided,
however, that the following shall not constitute Senior Debt: (i) any
particular indebtedness or obligation that is owed by the Company to any of
its direct and indirect Subsidiaries, (ii) any particular indebtedness,
deferral, renewal, extension or refunding if it is expressly stated in the
governing terms or in the assumption thereof that the indebtedness involved is
pari passu in right of payment with or junior in right of payment to the Notes
and (iii) any trade payables and other accrued current liabilities incurred in
the ordinary course of business.
Senior Debt Documents means, collectively, any and all agreements
relating to any Senior Debt, including, without limitation, the Credit
Agreement.
Significant Subsidiaries has the meaning ascribed to such term in
Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.
Special Record Date has the meaning assigned to that term in Section
2.6.
Stated Maturity, when used with respect to the Notes or any
installment of Principal thereof or interest thereon, means the date specified
in the Note or this Indenture as the fixed date on which the Principal of such
Note or such installment of interest is due and payable.
Subsidiary of any Person means another Person, an amount of the
voting stock, other voting ownership or voting partnership interests of which
is sufficient to elect at least a majority of its board of directors or other
governing body (or, if there are
no voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first Person.
Trading Days means, with respect to a security traded on a
securities exchange, automated quotation system or market, a day on which such
exchange, system or market is open for a full day of trading.
Transaction has the meaning assigned to that term in Section 14.7.
Trust Indenture Act means the Trust Indenture Act of 1939, as
amended, as in force at the date of this Indenture as originally executed,
except as provided in Section 9.4 hereof.
Trustee means The Bank of New York, a New York banking corporation,
and, subject to the provisions of Article Seven hereof, shall also include its
successor trustee appointed pursuant to the terms of this Indenture.
U.S. Government Obligations means securities which are (i) direct
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America which, in either case, have a maturity of one year or less.
Voting Securities means, with respect to any Person, securities of
such Person having the ordinary power to vote in the election of the board of
directors or other governing body of such Person.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF NOTES
Section 2.1 Amount, Authentication and Delivery
The aggregate original issue price of Notes which may be
authenticated and delivered under this Indenture is $400 million except for
Notes authenticated and delivered upon registration or transfer of, or
exchange for, or in lieu of, other Notes pursuant to Sections 2.8, 2.9, 2.10,
9.4 or 13.1 or in connection with a Change of Control Offer pursuant to
Section 4.13.
Upon the execution of this Indenture, or from time to time
thereafter, the Notes may be executed and registered by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Notes to or upon the written
order of the Company, signed by its Chairman of the Board of Directors or a
Vice Chairman of the Board of Directors or its President or an Executive Vice
President and by its Chief Financial Officer, Treasurer or an Assistant
Treasurer under its corporate seal, without any further action by the Company
hereunder.
Only such Notes as shall bear thereon either a certificate of
authentication substantially in the form recited in Section 2.3, or an
alternate certificate of authentication substantially in the form recited in
Section 2.4, duly executed by the
Trustee or by the Authenticating Agent on its behalf, respectively, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or by the Authenticating Agent on its
behalf upon any Note executed by the Company shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
Section 2.2 Form of Security; Denominations. The Notes shall be
substantially in such form as set forth in Appendix A to this Indenture and
may have imprinted or otherwise reproduced thereon such letters, numbers or
other marks of identification or designation and such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as
may be determined by the officers of the Company executing such Notes, as
evidenced by their execution of the Notes.
The Notes shall be issued as registered Notes without coupons in
denominations of $1,000 original issue price.
Each Note shall be dated the date of authentication and shall bear
interest in accordance with Section 2.6.
The terms and provisions contained in the Notes 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.
Section 2.3 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Notes shall be in substantially
the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Authorized Signatory
Section 2.4 Form of Authenticating Agent's Alternate Certificate of
Authentication. The Authenticating Agent's alternative certificate of
authentication on all Notes shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Authenticating Agent
By
----------------------------------
Authorized Signature
Section 2.5 Notes in Global Form. The Notes shall be issuable in
global form. Any such Note may provide that it shall represent the aggregate
amount of Outstanding Notes from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Notes represented thereby may
from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Note in global form to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Notes represented thereby, shall be made in such manner and by such Person or
Persons as shall be specified therein or in the order of the Company to be
delivered to the Trustee pursuant to Section 2.1. The Trustee shall deliver
and redeliver any Note in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable order of the company. Any instructions by the Company with respect
to endorsement or redelivery of a Note in global form shall be in writing but
need not be accompanied by an Opinion of Counsel.
Any registered Note in global form authenticated and delivered
hereunder shall bear a legend in substantially the following form with such
changes as may be required by the depositary:
This security is in global form within the meaning of the
indenture hereinafter referred to and is registered in the name
of a depositary or a nominee of a depositary. Unless and until
it is exchanged in whole or in part for securities in
certificated form in the limited circumstances described in the
indenture, this security may not be transferred except as a
whole by the depositary or a nominee of the depositary to the
depositary or another nominee of the depositary or by the
depositary or any such nominee to a successor depositary or a
nominee of such successor depositary.
Section 2.6 Title and Terms. The Notes shall be known and designated
as the 6.75% Convertible Subordinated Notes Due 2009 of the Company. The
Company shall pay cash interest on the Notes at the rate and in the manner
specified below. Prior to July 21, 2004 (the "Full Accretion Date"), cash
interest will not accrue or be payable on the Notes, but the Notes will
accrete on a daily basis, compounded semi-annually on January 21 and July 21
of each year, at the rate of 6.75% per annum of the Accreted Value of the
Notes from July 21, 1999 through the Full Accretion Date. On the Full
Accretion Date, the Accreted Value of each $1,000.00 of original issue price
of the Notes will be equal to $1,393.65 (the "Full Accreted Value"). From the
Full Accretion Date, interest on the Notes will accrue on the Full Accreted
Value of the Notes at the rate of
6.75% per annum from the most recent Interest Payment Date to which interest
has been paid or, if no interest has been paid, from the Full Accretion Date.
The Company will pay, in cash, such interest semiannually in arrears on
January 21 and July 21 of each year (each an "Interest Payment Date"),
commencing on January 21, 2005, or if any such day is not a Business Day on
the next succeeding Business Day, to Holders of record at the close of
business on the January 6 or July 6 immediately preceding the Interest Payment
Date (a "Regular Record Date"), except that interest not so punctually paid or
duly provided for, if any, will be paid to the person in whose name each Note
is registered as of the close of business on a special record date to be fixed
by the Company (a "Special Record Date" and each Regular Record Date and
Special Record Date, a "Record Date"), notwithstanding the subsequent
cancellation of this Note prior to such Interest Payment Date. Upon any
conversion of the Notes or any portion thereof into Common Stock following the
Full Accretion Date, only if such conversion occurs (x) following notice by
the Company of its option to redeem each Note under Section 13.1, (y) in
connection with a Change of Control or (z) on or after a Record Date and prior
to the applicable Interest Payment Date, the Company will pay, in cash, any
accrued and unpaid interest on each Note (or the portion being converted). All
accretions and interest payable with respect to the Notes will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Payment of the Principal of and interest on the Notes shall be made
by wire transfer in immediately available funds to a bank account in the
United States designated by each Holder in a written notice received by the
Company (a) in the case of a payment of interest (other than any interest
payable in connection with the conversion of any Note into Common Stock),
prior to the Record Date immediately preceding the date on which such payment
is due and (b) in the case of payment of Principal on the final maturity of
the Notes, prior to the Regular Record Date immediately preceding such final
maturity, or in the case of payment of Principal or interest on an earlier
redemption, repurchase or conversion date, no later than the fifteenth day
prior to such earlier redemption, repurchase or conversion date; provided,
that in the case of such payment of Principal, the Notes shall have been
surrendered to the Company for payment on or before the payment date. To the
extent lawful, the Company shall pay interest on overdue Principal, as
applicable, in cash at the rate of 8.75% per annum; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate. In addition, if an Event of Default occurs and is
continuing, to the extent lawful, the Company shall pay in cash interest at
the rate of 8.75% per annum on the Accreted Value of the Notes until the date
such Event of Default is cured, waived or otherwise satisfied in full;
provided, that if such cash default interest is paid prior to the Full
Accretion Date, the Accreted Value of the Notes shall be reduced to reflect
such payment in cash.
Section 2.7 Execution and Authentication. The Notes shall be
executed on behalf of the Company (i) by its Chairman of the Board of
Directors or a Vice Chairman of the Board of Directors or its President or an
Executive Vice President, and (ii) by its Chief Financial Officer, Treasurer
or an Assistant Treasurer or its Secretary or an Assistant Secretary. Each
such signature upon the Notes may be in the form of a facsimile signature of
any such officer and may be imprinted or otherwise reproduced on the Notes and
for that purpose the Company may adopt and use the facsimile signature of any
person who has been or is or shall be such officer. In case any such officer
of the Company signing any of the Notes shall cease to be such officer before
such Notes so signed shall have been authenticated and made available for
delivery by the Trustee or by the Authenticating Agent on its behalf, or
disposed of by the Company, such Notes nevertheless may be authenticated and
delivered or disposed of as though such person had not ceased to be such
officer of the Company.
The Company shall execute and the Trustee shall, in accordance with
this Section and the order of the Company, authenticate and deliver one or
more Notes in global form that (i) shall represent and shall be denominated in
an amount equal to the original issue price of the Outstanding Notes to be
represented by such Note or Notes in global form, (ii) shall be registered, if
a registered Note, in the name of the depositary for such Note or Notes in
global form or the nominee of such depositary, (iii) shall be delivered by the
Trustee to such depositary and (iv) shall bear the legend set forth in Section
2.5 and any other legend permitted under this Indenture.
Each depositary designated by the Company for a registered Note in
global form must, at the time of its designation and at all times while it
serves as depositary, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation. The Trustee shall have no
responsibility to determine if the depositary is so registered. Each
depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such depositary and the Trustee with regard to
Notes issued in global form.
Section 2.8 Exchange; Registration; Registration of Transfer and
Exchange. Any Note may be exchanged for a like aggregate original issue price
of any Note of other authorized denominations. Notes to be exchanged shall be
surrendered at the office or agency to be maintained by the Company as
provided in Section 4.2 (or at any of such offices or agencies if more than
one), and the Company shall execute and register and the Trustee or the
Authenticating Agent on its behalf shall authenticate and make available for
delivery in exchange therefor the Note or Notes which the Holder making the
exchange shall be entitled to receive.
The Company shall keep or cause to be kept, at the office or agency
to be maintained by the Company as provided in Section 4.2 (or at least one of
said offices or agencies, if more than one), a register or registers in which,
subject to such reasonable regulations as it may prescribe, the Company shall
register Notes and shall register the transfer of Notes as in this Article Two
provided (the "Notes Register"). Any such register shall be in written form or
in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
register or registers shall be available for inspection by the Trustee. Upon
due presentment for registration of transfer of any Note at such office or
agency, the Company shall execute and register and the Trustee or the
Authenticating Agent on its behalf shall authenticate and make available for
delivery in the name of the transferee or transferees a new Note or Notes for
a like aggregate principal amount. The Company shall give to any Holder of at
least 5% of the aggregate original issue price of Notes promptly upon request
therefor, a complete and correct copy of the names and addresses of all
registered Holders of Notes.
All Notes presented for registration of transfer or for exchange or
payment shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Trustee duly executed by, the Holder or his or her
attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or transfer of Notes. No service charge shall be made for any such
transaction.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Notes for a period of fifteen days preceding the
first mailing of notice of redemption of Notes to be redeemed or (b) to
register the transfer of or exchange any
Notes selected, called or being called for redemption as a whole or the
portion being redeemed of any such Notes selected, called or being called for
redemption in part.
All Notes issued upon any transfer or exchange of Notes shall be
valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Notes surrendered upon such
transfer or exchange.
Each Note issued in global form authenticated under this Indenture
shall be registered in the name of the depositary designated for such series
or a nominee thereof and delivered to such depositary or a nominee thereof or
custodian therefor, and each such Note issued in global form shall constitute
a single Note for all purposes of this Indenture.
Notwithstanding any other provision (other than the provisions set
forth in the next four succeeding paragraphs of this Section) of this Section,
unless and until it is exchanged in whole or in part for Notes in certificated
form in the circumstances described below, a Note in global form representing
all or a portion of the Notes may not be transferred except as a whole by the
depositary to a nominee of such depositary or by a nominee of such depositary
to such depositary or another nominee of such depositary or by such depositary
or any such nominee to a successor depositary or a nominee of such successor
depositary.
If at any time the depositary for the Notes notifies the Company
that it is unwilling or unable to continue as depositary for the Notes or if
at any time the depositary for the Notes shall no longer be eligible under
Section 2.7, the Company shall appoint a successor depositary with respect to
the Notes. If a successor depositary for the Notes is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company shall execute, and the Trustee, upon
receipt of a order of the Company for the authentication and delivery of
certificated Notes of like tenor, shall authenticate and deliver Notes of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the Full Accreted Value of the Note or Notes of like
tenor in global form in exchange for such Note or Notes in global form.
The Company may at any time in its sole discretion determine that
Notes issued in global form shall no longer be represented by such a Note or
Notes in global form. In such event the Company shall execute, and the
Trustee, upon receipt of an order of the Company for the authentication and
delivery of certificated Notes of like tenor, shall authenticate and make
available for delivery, Notes of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
Full Accreted Value of Note or Notes of like tenor in global form in exchange
for such Note or Notes in global form.
The depositary for the Notes may surrender a Note in global form in
exchange in whole or in part for Notes in certificated form on such terms as
are acceptable to the Company and such depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without service
charge,
(a) to each Person specified by such depositary a new
certificated Note or Notes of like tenor, of any authorized denomination as
requested by such Person, in aggregate Full Accreted Value equal to and in
exchange for such Person's beneficial interest in the Note in global form; and
(b) to such depositary a new Note in global form of like tenor
in a denomination equal to the difference, if any, between the original issue
price of the surrendered Note in global form and the aggregate original issue
price of certificated Notes delivered to Holders thereof.
Upon the exchange of a Note in global form for Notes in certificated
form, such Note in global form shall be canceled by the Trustee. Notes in
certificated form issued in exchange for a Note in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the depositary for such Note in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall make available for delivery such Notes
to the Persons in whose names such Notes are so registered.
Section 2.9 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and register and the Trustee shall authenticate
and make available for delivery temporary Notes, which temporary Notes are
printed, lithographed or typewritten. Temporary Notes may be of any
denomination and substantially in the form of the definitive Notes, but with
such omissions, insertions and variations as may be appropriate for temporary
Notes, all as may be determined by the Company. Temporary Notes may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Note shall be executed and registered by the Company and be
authenticated by the Trustee or by the Authenticating Agent on its behalf upon
the same conditions and in substantially the same manner, and with like
effect, as the definitive Notes. Such temporary Notes may be in global form,
representing all or a portion of the Outstanding Notes. Except in the case of
temporary Notes in global form, each of which shall be exchanged in accordance
with the provisions thereof, without unreasonable delay the Company shall
execute and register and shall furnish definitive Notes and thereupon
temporary Notes may be surrendered in exchange therefor at the office or
agency to be maintained by the Company as provided in Section 4.2 (or at any
of said offices or agencies, if more than one), and the Trustee or the
Authenticating Agent on its behalf shall authenticate and make available for
delivery in exchange for such temporary Notes a like aggregate principal
amount of definitive Notes of authorized denominations. Until so exchanged,
the temporary Notes shall be entitled to the same benefits under this
Indenture as definitive Notes.
Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes. In case any
temporary or definitive Note shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute and register, and upon its
request the Trustee shall authenticate and make available for delivery, a new
Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the Note so mutilated, or in lieu of and in substitution for
the Note so destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company and to the Trustee such note or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof. The
Trustee may authenticate any such substituted Note and make available for
delivery the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
connected therewith. In case any Note which has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Note, pay or authorize the payment of such
Note (without surrender thereof except in the case of a mutilated Note) if the
applicant for such payment shall furnish to
the Company and to the Trustee such Note or indemnity as may be required by
them to save each of them harmless and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substituted Note issued pursuant to the provisions of this
Section 2.10 by virtue of the fact that any such Note is destroyed, lost or
stolen shall, with respect to such Note, constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall at any time be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued under this Indenture. All Notes shall be held and owned upon
the express condition that (to the extent lawful) the foregoing provisions
shall be exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes and shall preclude any and all other rights or
remedies, notwithstanding any law or statute now existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other notes without their surrender.
Section 2.11 Cancellation of Surrendered Notes. All Notes
surrendered for payment, exchange or registration of transfer shall, if
surrendered to the Company, the Authenticating Agent or any paying agent, be
canceled and delivered to the Trustee or, if surrendered to the Trustee, be
cancelled by it, and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. On written
request of the Company, the Trustee shall deliver to the Company cancelled
Notes held by the Trustee. With the consent of the Company, the Trustee may
but shall not be required to destroy cancelled Notes. If the Company shall
acquire any of the Notes, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes
unless and until the same are cancelled and delivered to the Trustee or
surrendered to the Trustee for cancellation.
Section 2.12 Provisions of the Indenture and Notes for the Sole
Benefit of the Parties and the Noteholders. Nothing in this Indenture or in
any Note, expressed or implied, shall give or be construed to give to any
person other than the parties hereto and their successors and the Holders of
the Notes any legal or equitable right, remedy or claim under or in respect of
this Indenture, or under any covenant, condition or provision herein
contained, all the covenants, conditions and provisions hereof being for the
sole benefit of the parties hereto and their successors and of the Holders of
the Notes.
Section 2.13 CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on such Notes, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers used with
respect to the Notes.
ARTICLE 3
[intentionally omitted]
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.1 Payment of Principal and Interest on Notes. The Company
will duly and punctually pay or cause to be paid the Principal of and interest
on each of the Notes, at the place or places, at the respective times and in
the manner provided in the Notes and in this Indenture.
Section 4.2 Maintenance of Office or Agency for Transfer, Exchange
and Payment of Notes. As long as any of the Notes remain Outstanding, the
Company will maintain an office or agency in the Borough of Manhattan, the
City of New York, State of New York (and at such other place, if any, as shall
be specified in the form of such Note as a place for payment of Principal and
interest) where the Notes may be presented for registration of transfer and
for exchange as in this Indenture provided, where notices and demands to or
upon the Company in respect of the Notes or of this Indenture may be served
and where the Notes may be presented for payment. The Company will give to the
Trustee notice of the location of each such office or agency and of any change
in the location thereof. In case the Company shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations may be made and notices and
demands may be served at the Principal Corporate Trust Office of the Trustee.
Section 4.3 Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4.4 Duties of Paying Agent. (a) Whenever the Company shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.4,
(1) that it will hold all sums held by it as such agent for the
payment of the Principal of and interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on the Notes)
or the distributions described in Section 4.14 in trust for the benefit
of the respective Holders of the Notes entitled thereto and will notify
the Trustee of the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of the
Principal of or interest on the Notes when the same shall be due and
payable, and
(3) at any time during the continuance of such failure, immediately
pay to the Trustee all sums so held in trust by the paying agent.
(b) Company as Paying Agent. If the Company shall act as its
own paying agent, it will, on or before each due date of the Principal of,
premium, if any, or interest on the Notes, set aside, segregate and hold in
trust for the benefit of the respective Holders of the Notes entitled thereto
a sum sufficient to pay such Principal of or interest, if any, so becoming
due. The Company will promptly notify the Trustee of any failure to take such
action.
(c) Turnover to Trustee by Paying Agent of Company. Anything in
this Section 4.4 to the contrary notwithstanding, the Company may, at any
time, pay or cause to be paid to the Trustee all sums held in trust by it or
any paying agent hereunder as required by this Section 4.4, such sums to be
held by the Trustee upon the trusts herein contained.
(d) Holding Sums in Trust. Anything in this Section 4.4 to the
contrary notwithstanding, the agreement to hold sums in trust as provided in
this Section 4.4 is subject to the provisions of Sections 15.3 and 15.4.
Section 4.5 [intentionally omitted]
Section 4.6 [intentionally omitted]
Section 4.7 Preservation of Corporate Existence. Except in the event
of a transaction permitted under Section 10.1 or a Change of Control, the
Company shall do or cause to be done all things necessary to: (i) preserve and
maintain in full force and effect its corporate existence and good standing
under the laws of its jurisdiction of incorporation or organization; and (ii)
preserve and maintain in full force and effect all material rights,
privileges, qualifications, licenses and franchises necessary in the normal
conduct of its business, provided, however, that the Company shall not be
required to preserve any such right, privilege, qualification, license, 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 4.8 Payment of Taxes. The Company shall, or shall cause its
Subsidiaries to, pay or discharge before the same shall become delinquent, all
tax assessments and governmental charges or levies upon it or its properties
or assets, unless the same are being contested in good faith by appropriate
proceedings.
Section 4.9 Compliance with Laws. The Company shall comply, and
shall cause each Subsidiary to comply, in all material respects with (i) its
articles or certificate of incorporation and by-laws or other organizational
or governing documents, (ii) any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Entity, in
each case applicable to or binding upon the Company or any of its property or
to which the Company or any of its property is subject and (iii) the
directions of any Governmental Entity having jurisdiction over it or its
business, except any such failure to comply which would not have a Material
Adverse Effect.
Section 4.10 Original Issue Discount Information. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and amounts of original issue discount (including daily rates and accrual
periods) accrued on Outstanding Notes as of the end of such year and (ii) such
other specific information relating to such original issue discount as may
then be relevant under the Code.
Section 4.11 Notices. Upon knowledge of the Chief Executive Officer,
the President, any Executive Vice President or the Chief Financial Officer of
the Company of the events described below, the Company shall give prompt
written notice (but in any event within 20 days) to the Trustee and to each
Holder of Notes:
(a) of the occurrence of any default under, or breach of, any
of the provisions of the Notes; and
(b) of any acceleration prior to stated maturity under the
Senior Debt.
Each notice pursuant to this Section 4.11 shall be accompanied by a
certificate of the Company setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
Section 4.12 Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issue upon conversion of Outstanding Notes as provided herein and
therein, such number of shares of Common Stock as shall then be issuable upon
the conversion of Outstanding Notes. The Company shall issue the Common Stock
into which the Notes are convertible upon the proper surrender of the Notes in
accordance with the provisions hereof and shall otherwise comply with the
terms thereof.
Section 4.13 Change of Control.
(a) If, on or prior to July 21, 2004, a Change of Control
occurs in which all or a portion of the consideration received by the
Company's shareholders is in cash then, notwithstanding any other provision of
this Indenture or the Notes, a Holder of a Note may elect to receive in
connection with the Change of Control Payment pursuant to Section 4.13(b) an
amount equal to the product of (x) the Cash Percentage and (y) the difference
between the Full Accreted Value of such Note and the Accreted Value of such
Note on the date such Change of Control occurs (the "Full Cash Payment");
provided, however, that if the Holder of a Note elects not to have the Company
purchase all or any portion of its Note pursuant to Section 4.13(b), such
Holder shall not be entitled to the Full Cash Payment. The "Cash Percentage"
means the ratio (expressed as a percentage) of cash received by the Company's
shareholders in a Change of Control described in the first sentence of this
Section 4.13(a) to the Fair Market Value of all consideration (including,
without limitation, such cash portion) received by the Company's shareholders
in such Change of Control. The Fair Market Value shall be determined in
accordance with Section 4.13(c).
(b) Upon the occurrence of a Change of Control (whether the
consideration is cash, securities or other property, or a combination
thereof), the Company shall offer, and each Holder of the Notes shall have the
right to require the Company, to repurchase all, or a portion (equal to the
Cash Percentage multiplied by the Accreted Value) of such Holder's Notes at a
cash price (the "Change of Control Payment") equal to the greater of (i) the
sum of 101% of the Accreted Value of the Notes to be repurchased and the Full
Cash Payment (together, the "Accelerated Amount") and (ii) the Fair Market
Value (as determined in accordance with Section 4.13(c)) of the consideration
(whether such consideration is cash, securities or other property, or a
combination thereof) that such Holder would have received had it converted its
Notes to be repurchased at the Accelerated Amount into shares of Common Stock
immediately prior to such Change of Control, in each case plus any accrued and
unpaid cash interest thereon to the date of repurchase.
(i) Within 30 days following any Change of Control, the Company
shall mail a notice to the Trustee and the Holders of the Notes, at the
Holders' addresses as they appear on the Notes Register, stating:
(A) that an offer is being made pursuant to this Section
4.13(b) and that all Notes tendered and not withdrawn will be
accepted for payment;
(B) the circumstances and relevant facts regarding such
Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization, each after giving
effect to such Change of Control);
(C) the purchase price and the purchase date (which shall
be a Business Day), which shall be not later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date");
(D) that any Notes not tendered will continue to accrue
Accreted Value and interest pursuant to their terms; provided, that
the Full Cash Payment provided in Section 4.13(a) shall not be made;
(E) that, unless the Company defaults in the payment of
the Change of Control Payment, all Notes accepted for payment
pursuant to the repurchase offer made pursuant to this Section
4.13(b) (the "Change of Control Offer") shall cease to accrue
Accreted Value and interest on and after the Change of Control
Payment Date; and
(F) the procedures that Holders must follow to accept the
Change of Control Offer.
(ii) The Company shall cause the Change of Control Offer to
remain open for at least 20 Business Days or for such longer period as is
required by law.
(iii) On the Change of Control Payment Date, the Company shall:
(A) accept for payment all Notes or portions thereof
validly tendered and not withdrawn pursuant to the Change of Control
Offer;
(B) pay to each Holder of Notes so accepted the Change of
Control Payment in accordance with the terms of this Section in cash
in immediately available funds.
(iv) If any of the Notes are partially tendered to the extent
permitted under Section 4.13(b), the Company shall execute and register
and the Trustee or Authenticating Agent on its behalf shall authenticate
and make available for delivery, at the expense of the Company, a new
Note or Notes with a Full Accreted Value equal to that of any unpurchased
portion of the Notes surrendered.
(c) The Fair Market Value of the cash, securities and other
property received in a Change of Control by the Company's shareholders shall
be determined in good faith by the Board of Directors and the value of any
securities shall be determined by reference to the Market Price of such
securities. The Fair Market Value determined by the Board of Directors shall
be conclusive and binding unless the Holders of at least 51% of the aggregate
Accreted Value of the Notes Outstanding request that the Company obtain an
opinion of an independent nationally recognized investment banking firm
mutually acceptable to the Company and such Holders (the expense of which is
to be borne equally by the Company on the one hand and such Holders on the
other), in which event the Fair Market Value of such cash, securities and
other property shall be determined by such investment banking firm.
(d) Any Notes not tendered pursuant to Section 4.13(b) will (i)
continue to accrue Accreted Value and interest pursuant to their terms;
provided that the Full Cash Payment for such Notes shall not be made and (ii)
thereafter be convertible in the manner provided in Section 14.7.
(e) Immediately prior to the occurrence of any Change of
Control, the Company shall at its option either (i) deposit with the Trustee
for the benefit of the Holders of the Notes, an amount in cash sufficient to
fully satisfy the Company's payment obligations under Section 4.13(b) with
respect to such Change of Control or (ii) cause the payment obligations of the
Company under Section 4.13(b) with respect to such Change of Control to be
assumed by the entity or entities issuing or paying, as the case may be, the
stock, other securities or other property or assets (including cash) issued or
paid with respect to or in exchange for the Common Stock in connection with
such Change of Control.
Section 4.14 Dividends or Distributions. In addition to the interest
on the Notes described in Article Two of this Indenture, in the event that the
Company shall declare a dividend or make any other distribution (including,
without limitation, in cash, in capital stock (which shall include, without
limitation, any options, warrants or other rights to acquire capital stock) of
the Company, a redemption pursuant to, or a triggering event under, a
shareholder rights plan, "poison pill" or similar arrangement, or in other
property or assets and including a Regular Dividend) to holders of Common
Stock, then, at the option of Holders of the Notes (which shall be determined
by at least 51% of the aggregate Accreted Value of the Notes Outstanding), (i)
the Board of Directors shall declare, and the Company shall pay to the
Trustee, on behalf of the Holders, a distribution in an amount equal to the
amount of such dividend or distribution received by a holder of the number of
shares of Common Stock into which such Note is convertible on the record date
for such dividend or distribution at the Designated Value as of such date or
(ii) except in the case of Regular Dividends, the Conversion Price of the
Notes shall be adjusted pursuant to Section 14.3 hereof. Promptly after the
Company's declaration of a dividend or making of any other distribution (but
not later than 10 Business Days thereafter), the Company shall deliver a
notice of such dividend or distribution to the Trustee and the Holders of the
Notes. Within 10 Business Days of such notice, the Trustee shall notify the
Company of the Holders' election under this Section 4.14 (which shall be
evidenced by a written resolution by at least 51% of the aggregate Accreted
Value of the Notes outstanding). If the Holders of the Notes elect to receive
such dividends or distributions in the manner set forth in clause (i) above,
the Company shall pay all such distributions to the Trustee for the benefit of
the Holders of the Notes until the earlier of (i) such time as such Notes are
converted into Common Stock and (ii) the redemption of Notes under Section
4.13. Upon conversion of any Note, the portion of each such distribution
relating to the Note so converted (together with any interest or other income
thereon) shall be distributed to the Holder of such Note
at the time of conversion. In the event of a repurchase of any Note under
Section 4.13(b), the portion of each such distribution relating to the Note so
repurchased (together with any interest or other income thereon) shall be
distributed to the Holder of such Note at the time of such repurchase. In the
event of any Change of Control, the Cash Percentage of each such distribution
held by the Trustee shall be distributed to the Holders of the Notes upon such
Change of Control. During the time that any such distribution is held by the
Trustee on behalf of the Holders, the Trustee shall invest distributions for
the benefit of the respective Holders in U.S. Government Obligations as
provided in Section 7.5 hereof.
Section 4.15 Maintenance of Properties. The Company shall maintain
and preserve, and cause each of its Subsidiaries to maintain and preserve, all
of its properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted, except for
such failures to maintain and preserve which would not have a Material Adverse
Effect.
Section 4.16 Forbearance from Restrictions on Rights of Holders of
Notes. The Company will not enter into any agreement or instrument or
otherwise agree to any covenant that would in any way limit the right of the
Holders of the Notes to convert the Notes into Common Stock.
ARTICLE 5
NOTEHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
Section 5.1 Company to Furnish Trustee Information as to Names and
Addresses of Noteholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes:
(a) semiannually, not more than fifteen days after each Record
Date for the payment of semiannual interest on the Notes, as of such Record
Date, and
(b) at such other times as the Trustee may request in writing,
within thirty days after receipt by the Company of any such request, as of a
date not more than fifteen days prior to the time such information is
furnished,
excluding from any such list names and addresses received by the Trustee in
the capacity of Notes registrar, if so acting.
Section 5.2 Compliance with Section 312 of the Trust Indenture Act
The Company agrees to provide information relating to the Holders of the Notes
to the Trustee pursuant to the requirements of Section 312 of the Trust
Indenture Act. The Trustee agrees to furnish information to the Holders of the
Notes pursuant to the requirements of Section 312 of the Trust Indenture Act.
Section 5.3 Annual and Other Reports to be Filed by the Company with
Trustee. The Company covenants:
(a) to file with the Trustee, within fifteen days after the
Company is required to file the same with the SEC, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the
foregoing as the SEC may from time to time by rules and regulations prescribe)
which the Company may be required to file with the SEC pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of such sections,
then to file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the supplementary
and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC, such
additional information, documents, and reports with respect to compliance by
the Company with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations;
(c) to transmit by mail to all Holders of Notes, as the names
and addresses of such holders appear on the Notes Register, within thirty days
after the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 5.3 as may be required by rules and
regulations prescribed from time to time by the SEC; delivery of such reports,
information and documents to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates);
(d) to deliver to the Trustee within 120 days after the end of
each fiscal year of the Company (beginning with the fiscal year ending
December 31, 1999), a certificate from its principal executive officer,
principal financial officer or principal accounting officer, stating whether
to the best knowledge of the signer thereof, the Company is in compliance
(without regard to periods of grace or notice requirements) with all
conditions and covenants under this Indenture, and if the Company shall not be
in compliance, specifying such non-compliance and the nature and status
thereof of which such signer may have knowledge; and
(e) to deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice of the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 5.4 Trustee Reports to Noteholder. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15, comply
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Notes are listed, with the SEC and with the Company. The
Company will promptly notify the Trustee when the Notes are listed on any
stock exchange and of any delisting thereof.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
Section 6.1 Events of Default Defined. An Event of Default shall
occur (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 Entity), if:
(a) the Company shall default in the payment of the Principal
of any Notes, when and as the same shall become due and payable, whether at
maturity or at a date fixed for prepayment or by acceleration or otherwise,
whether or not such payment is prohibited by the provisions of Article Eleven;
or
(b) the Company shall default in the payment of any installment
of cash interest on any Note according to the terms thereof, when and as the
same shall become due and payable and such default shall continue for a period
of 20 days, whether or not such payment is prohibited by the provisions of
Article Eleven; or
(c) the Company or any of its Subsidiaries, as the case may be,
shall default in the due observance or performance of any other covenant,
condition or agreement on the part of the Company or any of its Subsidiaries
to be observed or performed pursuant to the terms of this Indenture, and such
default shall continue for 50 days after written notice thereof, by registered
or certified mail, which shall have been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% of the
aggregate Accreted Value of the Notes Outstanding specifying such default and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) [Intentionally Omitted]
(e) any default in the observance or performance of any
agreement or condition relating to Senior Debt in an amount in excess of
$250,000,000 or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition has resulted in the
acceleration of such Senior Debt prior to its stated maturity; or
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in
respect of the Company or any of its Significant Subsidiaries, or of a
substantial part of their property or assets, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any of its Significant Subsidiaries, or
for a substantial part of their property or assets or (iii) the winding up or
liquidation of the Company or any of its Significant Subsidiaries; and such
proceeding or petition shall continue undismissed for 60 days, or an order or
decree approving or ordering any of the foregoing shall be entered; or
(g) the Company or any Significant Subsidiary thereof shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of or the entry of an order for relief
against it, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (f) of this
Section 6.1, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or any of its Significant Subsidiaries, or for a substantial part of
their property or assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any corporate action for the purpose of effecting any of the
foregoing.
Section 6.2 Acceleration. If an Event of Default occurs under
clauses (f) or (g) of Section 6.1, then the Accreted Value of, premium, if
any, and all accrued interest on the Notes and all other amounts owing under
this Indenture and the Notes shall automatically become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are expressly waived. If any other Event of Default (other than an Event
of Default specified under clauses (f) or (g) of Section 6.1) occurs and is
continuing, either the Trustee or the Holders of 25% of the aggregate Accreted
Value of the Notes Outstanding, by written notice to the Company, may declare
the Accreted Value of, premium, if any, and accrued interest on the Notes and
all other amounts owing under this Indenture to be due and payable
immediately. Upon such declaration, such Accreted Value, premium and interest
and other amounts shall become immediately due and payable. The Holders of a
majority of the aggregate Accreted Value of the Notes Outstanding may rescind
and annul an acceleration and its consequences if all existing Events of
Default have been cured or waived, except nonpayment of Principal or interest
or other amounts that have become due solely because of the acceleration, and
if the rescission would not conflict with any judgment or decree. Any notice
or rescission shall be given in the manner specified in Section 17.4 hereof.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the Holders of the Notes shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Holders of the Notes
shall continue as though no such proceedings had been taken.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such
action or proceedings to judgment or final decree and may enforce any such
judgment or final decree against the Company or other obligor upon the Notes
and collect in the manner provided by law out of the property of the Company
or other obligor upon the Notes wherever situated the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Notes under
Title 11 of the United States Code or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company
or other obligor, or in case of any other judicial proceedings relative to the
Company or such other obligor upon the Notes, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the
Principal of the Notes shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 6.2, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
Principal and interest owing and unpaid in respect of the Notes, and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee, its agents and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the Trustee,
its agents and counsel except as a result of its negligence or bad faith) and
of the Holders allowed in any judicial proceedings relative to the Company or
other obligor upon the Notes, or to the creditors or property of the Company
or such other obligor; and
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other
bankruptcy or insolvency proceedings or person performing similar functions in
comparable proceedings; and
(c) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Holders and of the Trustee on their behalf; and
any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of payments directly to the
Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee, its
agents and counsel except as a result of its negligence or bad faith.
All rights of action and to assert claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes or the production thereof on any trial or other
proceedings relative thereto, any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of
the Notes.
In case of a default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by the Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or otherwise, and the
Trustee may enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Section 6.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.2 shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of Principal or interest, upon
presentation of the several Notes and stamping thereon the payment if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
reasonable compensation to the Trustee, its agents and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
SECOND: In case the Principal of the Notes in respect of which
moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Notes in default, in the order
of the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at 8.75% per annum such payments to be
made ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the Principal of the Notes in respect of which moneys
have been collected shall have become and shall be then due by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon the Notes for Principal and interest, with interest upon
the overdue Principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, at 8.75%
per annum and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon Notes, then to the payment of
such Principal and interest without preference or priority of Principal
over interest, or of interest over Principal or of any installment of
interest over any other installment of interest, or of any Note over any
other Note, ratably to the aggregate of such Principal and interest.
Section 6.4 Limitation on Suits by Holders. No Holder of any Note
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceedings at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of any Event of Default and unless also the Holders of not less
than twenty-five percent in aggregate Principal amount of the Notes then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee,
for sixty days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 6.6; it being understood and intended and
being expressly covenanted by the taker and Holder of every Note with every
other taker and Holder and the Trustee that no one or more Holders of Notes
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of Notes, or to obtain or seek to obtain priority over or
preference to
any other such Holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of
all Holders of Notes of the applicable series. For the protection and
enforcement of the provisions of this Section 6.4, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or
in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Note to receive payment of the Principal of and
interest on such Note, on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
Section 6.5 Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. All powers and remedies given by this Article
Six to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the
Trustee or of any Holder of any of the Notes in exercising any right or power
accruing upon any default occurring and continuing as aforesaid shall impair
any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section
6.4, every power and remedy given by this Article Six or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 6.6 Control by Holders. The Holders of a majority in
aggregate Principal amount of the Notes affected at the time outstanding shall
have the right to (i) 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 Notes by this Indenture and
(ii) waive any default or Event of Default occurring and continuing under this
Indenture and its consequences but only in the specific instance and for the
specific purpose for which made or given.
In the case of any such waiver, the Company, the Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.
Section 6.7 Trustee to Give Notice of Defaults Known to it, but May
Withhold in Certain Circumstances. The Trustee shall, within ninety days after
the occurrence of a default, give to all Holders, as the names and addresses
of such Holders appear on the Notes Register, notice by mail of all defaults
known to the Trustee, which have occurred with respect to the Notes, unless
such defaults shall have been cured before the giving of such notice (the term
"default" or "defaults" for the purposes of this Section 6.7 being hereby
defined to be any event or events, as the case may be, specified in clauses
(a), (b), (c), (d), (e), (f) and (g) of Section 6.1, not including periods of
grace, if any, provided for therein and irrespective of the giving of written
notice specified in clause (c) of Section 6.1; provided, that, except in the
case of a default in the payment of
the Principal of or interest on any of the Notes, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Notes. The Trustee shall not be
deemed to have knowledge of any default hereunder unless a Responsible Officer
of the Trustee has actual knowledge of the default or the Trustee receives
written notice thereof.
Section 6.8 Undertaking for Costs. All parties to this Indenture
agree, and each holder of any Note by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.8 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders of Notes,
holding in the aggregate more than ten percent in Principal amount of the
Notes Outstanding, to any suit instituted by any Holder for the enforcement of
the payment of the Principal of or interest on any Note on or after the due
date of such payment or to any suit instituted by any Holder for the
enforcement of the right to convert Notes pursuant to Article Fourteen.
Section 6.9 Waiver of Usury, Stay or Extension Law. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, that 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 covenant that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.1 Certain Duties and Responsibilities. With respect to the
Holders, the Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been
cured), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate Principal
amount of the Notes at the time Outstanding (determined as provided in Section
8.3) relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
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.
Section 7.2 Certain Rights of Trustee. Except as otherwise provided
in Section 7.1:
(a) the Trustee may rely conclusively and shall be protected in
acting or refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order, demand, notice or other
communication of the Company mentioned herein shall be sufficiently evidenced
by an instrument signed in the name of the Company by the Chairman of the
Board of Directors or a Vice Chairman of the Board of Directors or the
President or an Executive Vice President and the Secretary or an Assistant
Secretary or the Chief Financial Officer, the Treasurer or Assistant Treasurer
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders, pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(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 or other paper or document but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian or other Person
employed to act hereunder.
Section 7.3 Trustee Not Liable for Recitals in Indenture or in
Notes. The recitals contained herein and in the Notes (except in the
certificates of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes. The Trustee shall not be accountable for
the use or application by the Company of any of the Notes or of the proceeds
thereof.
Section 7.4 May Hold Notes. The Trustee or the Authenticating Agent
or any paying agent or Note registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent or Note
registrar, subject to Sections 7.8 and 7.13 of this Article Seven.
Section 7.5 Moneys Held in Trust; Interest Not Payable Except by
Agreement. Subject to the provisions of Section 15.4 hereof, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it
hereunder; provided, however, that the Trustee shall invest distributions held
by it pursuant to Section 4.14, pursuant to written instruction from the
Company, which instruction shall specify the particular investment to be made.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its Chairman of the Board of Directors
or a Vice Chairman of the Board of Directors or its President or an Executive
Vice President or its Chief Financial Officer, Treasurer or Assistant
Treasurer.
Section 7.6 Compensation, Reimbursement and Indemnity. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to by the Company
and the Trustee in writing (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) and, except as
otherwise expressly provided, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the compensation and the expenses and disbursements
of its counsel and its agents) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. If any property other
than cash shall at any time be subject to the lien of this Indenture, the
Trustee, if and to the extent authorized by a receivership or bankruptcy court
of competent jurisdiction or by the supplemental instrument subjecting such
property to such lien, shall be entitled but not required to make advances for
the purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances thereon and the Trustee shall be entitled to
reimbursement thereof. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any and all damage, claims, loss,
liability or expense, including taxes, incurred without gross negligence or
bad faith on the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim (whether asserted by the Company, a
Noteholder or any other Person) or liability in connection with the exercise
or performance of any of its duties hereunder. The obligations of the Company
under this Section 7.6 shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Notes 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 Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(f) or Section 6.1(g), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 7.7 Right of Trustee to Rely on Certificate of Officers of
the Company. Except as otherwise provided in Section 7.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by a certificate signed by the Chairman of
the Board of Directors or a Vice Chairman of the Board of Directors or the
President or an Executive Vice President and by the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Company and delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 7.8 Trustee Acquiring Conflicting Interest. If the Trustee
has or shall acquire any conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall eliminate such interest or resign to the
extent and in the manner provided by and subject to the provisions of the
Trust Indenture Act.
Section 7.9 Requirements for Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States or of any State or Territory or of the
District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least one hundred million
dollars and being subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 7.9 the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 7.9, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 7.10.
Section 7.10 Resignation of Trustee. (a) The Trustee may at any time
resign by giving written notice of resignation to the Company. Upon receiving
such notice of resignation the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within thirty days after
the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona fide
Holder of a Note or Notes for at least six months may, subject to the
provisions of Section 6.8, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur
(1) the Trustee shall fail to comply with the provisions
of Section 7.8 after written request therefor by the Company or by any
Noteholder who has been a bona fide holder of a Note or Notes for at
least six months, or
(2) such Trustee shall cease to be eligible in accordance
with the provisions of Section 7.9 and shall fail to resign after written
request therefor by the Company or by any such Noteholder, or
(3) such 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 may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, (ii) subject to the
provisions of Section 6.8, any Noteholder who has been a bona fide Holder of
such series of Note 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
(iii) such Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate Principal amount of
the Notes at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed (subject to its
compliance with Section 7.11) as successor trustee unless within ten days
after such nomination the Company objects thereto, in which case the Trustee
so removed or any Noteholder, upon the terms and conditions and otherwise as
in subdivision (a) of this Section 7.10 provided, may petition, at the expense
of the Company, any court of competent jurisdiction for an appointment of a
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within sixty days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
Section 7.11 Acceptance by Successor to Trustee. Any successor
trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Company, and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.6, execute and deliver an instrument transferring to such successor
trustee all of the rights and powers of the trustee so ceasing to act and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such Trustee ceasing to act. Upon request of any such
successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 7.6.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the Company shall mail notice of the succession of such
trustee hereunder to all Holders of Notes as the names and addresses of such
Holders appear upon the Note Register. If the Company fails to mail such
notice in the prescribed manner within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be so mailed at the expense of the Company.
Section 7.12 Successor to Trustee by 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 such Trustee hereunder, provided such corporation shall be
qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.13 Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Notes), 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 7.14 Appointment and Qualification of Authenticating Agent.
As long as any of the Notes remain outstanding, there may be one or more
Authenticating Agents appointed by the Trustee to act on its behalf and
subject to its direction in connection with the authentication of the Notes as
set forth in Articles Two and Three. For all purposes of this Indenture, the
authentication and delivery of Notes by any Authenticating Agent pursuant to
this Section shall be deemed to be authentication and delivery of such Notes
"by the Trustee." Each such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
or of any State or Territory or of the District of Columbia authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $10 million, and being subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority
and shall be satisfactory to the Company. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 7.14, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
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 any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all
the corporate agency or corporate trust business of any Authenticating Agent,
shall continue to be the Authenticating Agent without the execution or filing
of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. Such Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination 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 any Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 7.14, the Trustee promptly shall appoint a
successor Authenticating Agent, if the terms of this Section 7.14 require that
there shall be an Authenticating Agent, shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all
Holders of Notes as the names and addresses of such Holders appear upon the
Notes
Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
7.14.
The Company agrees to pay to the Authenticating Agent from time to
time reasonable compensation for its services.
ARTICLE 8
CONCERNING THE NOTEHOLDERS
Section 8.1 Form and Effectiveness of Noteholder Action. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in Principal amount of the Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Noteholders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. 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 Sections
7.1 and 7.2) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this section.
(b) Subject to the provisions of Sections 7.1 and 7.2, the
execution of any instrument by a Noteholder or his or her agent or proxy may
be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
(c) The holding of Notes shall be proved by the Notes Register
or by a certificate of the registrar thereof.
Section 8.2 Who May be Deemed Owners of Notes. The Company, the
Trustee, any Authenticating Agent, any paying agent and any Notes registrar
may deem and treat the person in whose name any Note shall be registered upon
the Notes Register as the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Note and for all other purposes; and neither the Company nor the Trustee
nor any Authenticating Agent nor any paying agent nor any Note registrar shall
be affected by any notice to the contrary. All such payments so made to any
such person, or upon his order, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Note.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Note in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee) as a
Holder, with respect to such Note in global form or impair, as between such
Depositary and owners of beneficial interests in such Note in global form, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Note in global form.
Section 8.3 Notes Owned by the Company or Controlled or Controlling
Companies Disregarded for Certain Purposes. In determining whether the Holders
of the requisite aggregate Principal amount of Notes have concurred in any
demand or request, the giving of any notice, direction, consent or waiver or
the taking of any other action under this Indenture, Notes which are owned by
the Company or any other obligor on the Notes or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination except that for the purpose of determining whether the Trustee
shall be protected in relying on any such demand, request, notice, direction,
consent or waiver only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
Section 8.4 Revocation of Action by Noteholders; Action by
Noteholder Binds Future Holders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.1, of the taking of any
action by the Holders of the percentage in aggregate Principal amount of the
Notes specified in this Indenture in connection with such action, any holder
of a Note the serial number of which is shown by the evidence to be included
in the Notes the Holders of which have joined in such action may, by filing
written notice with the Trustee at its office and upon proof of ownership as
provided in Section 8.1, revoke such action so far as concerns such Note.
Except as aforesaid any such action taken by the Holder of any Note shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Note and of any Note issued upon the transfer thereof or in exchange
or substitution therefor, irrespective of whether or not any notation in
regard thereto is made upon such Note. Any action taken by the Holders of the
percentage in aggregate Principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon
the Company, the Trustee and the Holders of all the Notes affected by such
action.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Noteholders.
The Company, when authorized by the resolutions of its Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Ten hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board of Directors of
the Company and the Trustee shall consider to be for the protection of the
Holders of Notes, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture;
provided, however, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the holders of a
majority in aggregate Principal amount of the Notes to waive such default;
(c) to comply with any requirement of the SEC in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; and
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not adversely
affect the interests of the Holders of the Notes.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section 9.1 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Notes at the time outstanding.
Section 9.2 Modification of Indenture with Consent of Note Holders.
With the consent (evidenced as provided in Section 8.1) of the Holders of not
less than 51% in aggregate Accreted Value of the Notes at the time
Outstanding, the Company, when authorized by resolutions of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture; provided, however, that without the consent
of the Holder of each Outstanding Note affected thereby, a supplemental
indenture under this Section may not:
(a) change the stated maturity of the Principal of, or any
installment of Principal of, or rate of interest on, any Note, or reduce the
Principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption, repurchase or repayment thereof, or change the
manner in which the amount of any Principal thereof or rate of interest
thereon is determined or reduce the amount of the Principal that would be due
and payable upon a Change of Control or declaration of acceleration of the
maturity thereof pursuant to Section 6.2, or change the place of
payment where, or impair the right to institute suit for the enforcement of
any such payment on or after the stated maturity thereof (or, in the case of
redemption or offer to repurchase, on or after the redemption date or
repurchase date, as the case may be);
(b) reduce the percentage in Principal amount of the
Outstanding Notes affected thereby, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for
in this Indenture;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 4.2;
(d) make any change in this Section 9.2 except to increase any
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holders of the
Outstanding Notes affected thereby, except in circumstances beneficial to the
Holders; or
(e) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to the Holders.
Upon the request of the Company, accompanied by a copy of
resolutions of its Board of Directors certified by the Secretary or an
Assistant Secretary authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
It shall not be necessary for the Noteholders under this Section 9.2
to consent to the particular form of any proposed supplemental indenture, but
it shall be sufficient if they consent to the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.2, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to all Holders of Notes as the names and
addresses of such holders appear upon the Notes Register. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 9.3 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article Nine,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the
Holders of Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee, subject to the provisions of Sections 7.1 and 7.2,
shall receive an Opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the provisions of this Article Nine.
Section 9.4 Notes May Bear Notation of Changes by Supplemental
Indentures. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Nine may
bear a notation in form approved by the Trustee for such series as to any
matter provided for in such supplemental indenture. New Notes so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any
modification or amendment of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company, authenticated by the
Trustee or by the Authenticating Agent on its behalf and delivered in exchange
for the Notes then outstanding.
Every amendment to this Indenture or the Notes shall be set forth in
an Officers' Certificate or supplemental indenture that complies with the
Trust Indenture Act as then in effect.
ARTICLE 10
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.1 Consolidation and Merger of the Company and Sale or
Conveyance Permitted. Nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation of the Company with, or merger of the
Company into, any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers to which the
Company or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of the Company as an entirety
or substantially as an entirety to any other corporation (whether or not
affiliated with the Company) authorized to acquire and operate the same;
provided, however, and the Company hereby covenants and agrees, that:
(a) upon any such consolidation, merger, sale or conveyance,
the due and punctual payment of the Principal of and interest on all of the
Notes according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation formed by such consolidation, or
into which the Company shall have been merged, or which shall have acquired
such property; and
(b) the Company will not merge or consolidate with any other
Person if at the time of such merger or consolidation such other Person has
received a notice of payment default under a material indenture or any other
material Indebtedness of such Person that has not been cured within the period
specified therein.
Section 10.2 Rights and Duties of Successor Corporation. In case of
any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company prior to such succession,
any or all of the Notes issuable pursuant to this Indenture which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Notes which
previously shall have been signed by the officers of the Company and delivered
to the Trustee for authentication pursuant to such provisions and any Notes
which such successor corporation thereafter shall cause to be signed and such
successor corporation shall cause to be delivered to the Trustee on its behalf
for that purpose pursuant to such provisions. All the Notes so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form may be made in the Notes thereafter to be
issued as may be appropriate.
Nothing contained in this Indenture or in any of the Notes shall
prevent the Company from merging into itself any other corporation (whether or
not affiliated with the Company) or acquiring by purchase or otherwise all or
any part of the property of any other corporation (whether or not affiliated
with the Company).
Section 10.3 Opinion of Counsel. The Trustee, subject to the
provisions of Sections 7.1 and 7.2, shall receive an Opinion of Counsel as
conclusive evidence that any consolidation, merger, sale or conveyance and any
such assumption complied with the provisions of this Article Ten.
ARTICLE 11
SUBORDINATION
Section 11.1 Notes Subordinate to Senior Debt. The Company covenants
and agrees, and each Holder of a Note, by its acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article Eleven, the Indebtedness represented by the Notes and
the payment of the Principal of and interest on each and all of the Notes and
any Change of Control Payment are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt.
Section 11.2 Payment Over of Proceeds Upon Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith, relating to the Company or to its assets, or (b) any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company, then and in any such
event the holders of Senior Debt shall be entitled to receive payment in full
in cash or other payment satisfactory to the holders of Senior Debt (in their
sole discretion) of all amounts due or to become due on or in respect of all
Senior Debt before the Holders of the Notes are entitled to receive any
payment on account of Principal of or interest on the
Notes or on account of the purchase, redemption or other retirement of Notes
(including any Change of Control Payment), and to that end the holders of
Senior Debt shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable in respect
of the Notes in any such case, proceeding, receivership, dissolution,
liquidation, reorganization or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section 11.2, the Holder of any Note shall have received any payment or
distribution of assets of the Company of any kind or character, whether in
cash, securities or other property, before all Senior Debt is paid in full,
then such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
For purposes of this Article Eleven only, the words "cash,
securities or other property" shall not be deemed to include shares of stock
of the Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or readjustment
which shares of stock are subordinated in right of payment to all then
outstanding Senior Debt at least to the same extent as the Notes are so
subordinated as provided in this Article Eleven. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Section 10.1 shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company
for the purposes of this Section 11.2 if the Person formed by such
consolidation or into which the Company is merged or which acquires by
conveyance or transfer such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Section 10.1.
Section 11.3 Prior Payment to Senior Debt Upon Acceleration. In the
event that any Notes are declared due and payable before their Stated Maturity
pursuant to Article Six, then and in such event the holders of the Senior Debt
outstanding at the time such Notes so become due and payable shall be entitled
to receive payment in full of all amounts due or to become due as a result of
such acceleration of the Notes on or in respect of all Senior Debt before the
Holders of the Notes are entitled to receive any payment by the Company on
account of the Principal of or interest on the Notes or on account of the
purchase, redemption or other retirement of Notes (including any Change of
Control Payment).
The provisions of this Section 11.3 shall not apply to any payment
with respect to which Section 11.2 would be applicable.
Section 11.4 Payment To Holders
No payments shall be made with respect to the Principal of or
interest on the Notes by the Company (including, but not limited to, the
Change of Control Payment), except payments and distributions made as
permitted by Section 11.5, if:
(i) a default in the payment of principal, premium,
interest, or rent or other obligations due on any Senior Debt of the
Company has occurred and is continuing Senior Debt (including upon
acceleration of such Senior Debt) or a default in payment of any other
obligation with respect to the Senior Debt continues beyond the period of
grace, if any, specified in the instrument or lease evidencing such
Senior Debt, unless and until such default shall have been cured or
waived or shall have ceased to exist; or
(ii) a default (other than a default described in clause
(i) of this Section 11.4) on Designated Senior Debt occurs and is
continuing that permits holders of such Designated Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default
(a "Payment Blockage Notice") from a representative of Designated Senior
Debt or the Company.
If the Trustee receives any Payment Blockage Notice pursuant to
clause (ii) above, no subsequent Payment Blockage Notice shall be effective
for purposes of this Section 11.4 unless and until at least 360 days shall
have elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice. No default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee (unless such default
was waived, cured or otherwise ceased to exist and thereafter subsequently
reoccurred) shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
The Company may and shall resume payments on and distributions in
respect of the Notes upon the earlier of:
(1) in the case of a default described in clause (i) of
this Section 11.4, the date upon which the default is cured or waived or
ceased to exist, or
(2) in the case of a default referred to in clause (ii) of
this Section 11.4 above, the earlier of the date on which such default is
cured or waived or ceases to exist or 179 days after the date on which
the applicable Payment Blockage Notice is received if the maturity of
such Senior Debt has not been accelerated, unless this Article Eleven
otherwise prohibits the payment or distribution at the time of such
payment or distribution.
Section 11.5 Payment Permitted If No Default. Nothing contained in
this Article Eleven or elsewhere in this Indenture or in any of the Notes
shall prevent (a) the Company, at any time except during the pendency of any
case, proceeding, dissolution, liquidation or other winding up, assignment for
the benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 11.2 or under the conditions described in
Section 11.3 or 11.4, from making payments at any time of Principal of or
interest on the Notes or a Change of Control Payment, or (b) the application
by the Trustee of any money deposited with it hereunder to the payment of or
on account of the Principal of or interest on the Notes or a Change of Control
Payment or the retention of such payment by the Holders if, at the time of
such application by the trustee or retention, as applicable, a Responsible
Officer did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article Eleven.
Section 11.6 Subrogation to Rights of Holders of Senior Debt. After
the payment in full of all Senior Debt, the Holders of the Notes shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article Eleven to the
rights of the holders of such Senior Debt to receive payments and
distributions of cash, property and securities applicable to the Senior Debt
until the Principal of and interest on the Notes or Change of Control Payment
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Notes would be entitled except for the
provisions of this Article Eleven and no payments over pursuant to the
provisions of this Article Eleven to the holders of Senior Debt by Holders of
the Notes, shall, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 11.7 Provisions Solely to Define Relative Rights. The
provisions of this Article Eleven are intended solely for the purpose of
defining the relative rights of the Holders of the Notes on the one hand and
the holders of Senior Debt on the other hand. Nothing contained in this
Article Eleven or elsewhere in this Indenture or in the Notes is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Notes, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Notes the
Principal of and interest on the Notes and any Change of Control Payment as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Notes and creditors of the Company other than the holders of Senior Debt; or
(c) prevent the Holder of any Notes from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Eleven of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to such
Holder.
Section 11.8 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder of any Senior Debt, or by any non-compliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or written notice to the Holders of the Notes, without
incurring responsibility to the Holders of the Notes and without impairing or
releasing the subordination provided in this Article Eleven or the obligations
hereunder of the Holders of the Notes to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or reduce or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner (including the interest rate
thereof) Senior Debt or any instrument evidencing the same or any agreement
under which Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for the collection
of Senior Debt; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 11.9 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article Eleven, the Holders of the Notes shall be entitled
to conclusively rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of credi
tors, agent or other Person making such payment or distribution, delivered to
the Holders of Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt
and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Eleven.
Section 11.10 Certain Conversions Not Deemed Payment. For the
purposes of this Article Eleven only, (1) the issuance and delivery of junior
securities upon conversion of Notes in accordance with Article Fourteen shall
not be deemed to constitute a payment or distribution on account of the
Principal of or interest on Notes or on account of the purchase or other
acquisition of Notes, and (2) the payment, issuance or delivery of cash,
property or securities upon conversion of a Note or pursuant to Section 4.14
shall not be deemed to constitute payment on account of the Principal of such
Note. For the purposes of this Section 11.10, the term "junior securities"
means (a) shares of any stock of any class of the Company into which the Notes
are convertible pursuant to Article Fourteen and (b) securities of the Company
which are subordinated in right of payment to all Senior Debt which may be
outstanding at the time of issuance or delivery of such securities to at least
the same extent as the Notes are so subordinated as provided in this Article
Eleven. Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the
Company, its creditors (other than holders of Senior Debt) and the Holders of
the Notes, the right, which is absolute and unconditional, of the Holder of
any Notes to convert such Notes in accordance with Article Fourteen.
Section 11.11 Distribution To Be Paid Over. Subject to Section 11.5,
in the event that a distribution is made to the Holder of any Note that is
prohibited by this Article Eleven then each such Holder shall hold such
distribution in trust for the holders of Senior Debt and shall promptly pay it
over to the Company.
Section 11.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if the
Trustee shall in good faith mistakenly pay over or distribute to Holders of
Notes or to the Company or to any other person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article
Eleven or otherwise. With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants or obligations
as are specifically set forth in this Article Eleven and no implied covenants
or obligations with respect to holders of Senior Debt shall be read into this
Indenture against the Trustee.
ARTICLE 12
[intentionally omitted]
ARTICLE 13
OPTIONAL PREPAYMENT
Section 13.1 Optional Redemption.
(a) The Company may redeem (the "Optional Redemption") all of
the Notes, or any portion of the Notes in minimum multiples of $100,000,000 of
original issue price, at any time on or after July 21, 2004, at the following
redemption prices (each, an "Optional Redemption Price") expressed in
percentages of the Full Accreted Value of the Note on the redemption date,
plus accrued and unpaid interest to the date of redemption, subject to the
right of the Holder of the Note of record on the relevant record date to
receive interest on the relevant Interest Payment Date:
Period Redemption Price
From July 21, 2004 through
July 20, 2005....................................... 103.375%
From July 21, 2005 through
July 20, 2006....................................... 102.250%
From July 21, 2006 through
July 20, 2007....................................... 101.125%
July 21, 2007 and thereafter........................ 100.000%
(b) Notice of an Optional Redemption (the "Optional Redemption
Notice") pursuant to this Section 13.1 shall be mailed at least 30, but not
more than 60, days prior to the redemption date fixed in the Optional
Redemption Notice, which must be a Business Day (any such date an "Optional
Redemption Date"), to the Holders of the Notes, at such Holders' address as
they appear in the Notes Register. In order to facilitate the Optional
Redemption of the Notes, the Board of Directors may fix a record date for the
determination of the Notes to be redeemed, or may cause the transfer books of
the Company for the Notes to be closed, not more than 60 days or less than 30
days prior to the Optional Redemption Date.
Each Optional Redemption Notice shall identify the Notes to be
redeemed (including the CUSIP number), shall specify the Optional Redemption
Date and the Redemption Price at which the Notes are to be redeemed and shall
state that payment of the Optional Redemption Price of the Notes or portions
thereof to be redeemed will be made at the office or agency to be maintained
by the Company as provided in Section 4.2 (or any of said offices or agencies,
if more than one) upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Notes are to
be redeemed, each Optional Redemption Notice shall identify which of such
Notes are to be redeemed. In case any Note is to be redeemed in part only, the
Optional Redemption Notice shall state the portion of the Principal amount
thereof to be redeemed and shall state that on and after the Optional
Redemption Date, upon presentation and
surrender of such Note, a new Note or Notes in Principal amount equal to the
unredeemed portion thereof will be issued.
If any Notes are to be redeemed, the Company shall give the
Trustee forty-five days' written notice (or such lesser period of time as
approved by the Trustee) in advance as to the aggregate Principal amount of
such Notes to be redeemed, and if less than all the Notes are to be redeemed,
thereupon the Trustee shall select, by lot, pro rata or in such other manner
as in its sole discretion it shall deem appropriate and fair, the Notes or
portions thereof to be redeemed and shall thereafter promptly notify the
Company in writing which of the Notes or portions thereof are to be redeemed.
(c) On the Optional Redemption Date, the Holders of the Notes
shall surrender the Notes subject to the Optional Redemption to the Company at
the place designated in the Optional Redemption Notice, and the Company shall
pay to each Holder of the Notes subject to the Optional Redemption the
Optional Redemption Price in accordance with the terms of the Notes. From and
after the Optional Redemption Date (i) the Notes subject to the Optional
Redemption shall no longer be deemed Outstanding, (ii) the right to receive
interest thereon shall cease to accrue and (iii) all rights of the Holders of
the Notes subject to the Optional Redemption shall cease and terminate,
excepting only the right to receive the Optional Redemption Price therefor and
the right to convert such Notes into shares of Common Stock until the close of
business on one Business Day immediately preceding the date of redemption, in
accordance with Article Fourteen; provided, however, that if the Company shall
default in the payment of the Optional Redemption Price, the Notes shall
thereafter be deemed to be Outstanding and the Holder thereof shall have all
of the rights of a Holder of the Notes until such time as such default shall
no longer be continuing or shall have been waived by the Holders of the Notes.
Upon presentation and surrender of any Note which is redeemed in
part only, the Company shall execute and register and the Trustee or the
Authenticating Agent on its behalf shall authenticate and make available for
delivery, at the expense of the Company, a new Note or Notes of authorized
denominations, in Principal amount equal to the unredeemed portion of the Note
so presented.
ARTICLE 14
VOLUNTARY CONVERSION
Section 14.1 Conversion. Each Holder shall have the right, at its
option, at any time (i) after the expiration or early termination of any
applicable waiting period under the HSR Act with respect to the acquisition of
shares of Common Stock upon conversion of Notes by such Holder or (ii) in
connection with a Change of Control, to convert, subject to the terms and
provisions of this Article Fourteen, such Note (or any portion thereof of the
original issue price that is an integral multiple of $1,000) into such number
of fully paid and non-assessable shares of Common Stock at the Conversion
Ratio (as defined below) then in effect, except that if such Notes have been
called for redemption pursuant to Article Thirteen or come due at their final
maturity, such right shall terminate at the close of business on the Business
Day immediately preceding the date of redemption or final maturity for such
Notes, unless in any such case, the Company shall default in performance or
payment due upon redemption or final maturity thereof. The "Conversion Ratio"
shall mean, as of the close of business on any date, the ratio obtained by
dividing the Designated Value by the Conversion Price. The "Conversion Price"
shall initially be $29.89 and shall be subject to adjustment as set forth
in Section 14.3. Such conversion right shall be exercised by the surrender of
a Note (or a portion thereof) to be converted to the Company at any time
during usual business hours at its principal place of business to be
maintained by it, accompanied by written notice that the Holder elects to
convert such Note (or any portion thereof) and specifying the Accreted Value
of such Note to be converted, the name or names (with address) in which a
certificate or certificates for shares of Common Stock are to be issued and
(if so required by the Company) by a written instrument or instruments of
transfer in form reasonably satisfactory to the Company duly executed by the
Holder or its duly authorized legal representative and transfer tax stamps or
funds therefor, if required pursuant to Section 14.9. Any Note (or portion
thereof) surrendered for conversion shall be delivered to the Company for
cancellation and canceled by it. Except to the extent expressly provided for
in Section 2 in the Notes, no interest shall be payable upon conversion of any
Note (or portion thereof).
Section 14.2 Procedure. As promptly as practicable after the
surrender of any Note (or portion thereof) for conversion pursuant to Section
14.1, the Company shall deliver to or upon the written order of the Holder of
such Note so surrendered a certificate or certificates representing the number
of fully paid and non-assessable shares of Common Stock into which such Note
(or portion thereof) may be or have been converted in accordance with the
provisions of this Article Fourteen. Subject to the following provisions of
this paragraph and of Section 14.3, such conversion shall be deemed to have
been made immediately prior to the close of business on the date that such
Note (or portion thereof) shall have been surrendered in satisfactory form for
conversion, and the Person or Persons entitled to receive the Common Stock
deliverable upon conversion of such Note (or portion thereof) shall be treated
for all purposes as having become the record holder or holders of such Common
Stock at such time, and such conversion shall be at the Conversion Ratio in
effect at such time; provided, however, that any such surrender on any date
when the share transfer books of the Company shall be closed (but not for any
period in excess of five days), shall be effective on the day of such
surrender to constitute the Person or Persons entitled to receive such Common
Stock as the record holder or holders thereof for all purposes immediately
prior to the close of business on the next succeeding day on which such share
transfer books are open, and such conversion shall be deemed to have been made
at, and shall be made at the Conversion Price in effect on the day such Note
was surrendered. If a Note is converted in part only, upon such conversion,
the Company shall execute and deliver to the Holder, at the expense of the
Company, a new Note with an aggregate original purchase price equal to that of
the unconverted portion of the Principal amount at maturity of such Note. The
Company's delivery upon conversion of the shares of Common Stock into which
the Notes are convertible shall be deemed to satisfy the Company's obligation
to pay the Principal amount at maturity of the portion of Notes so converted
and any unpaid interest accrued on such Notes at the time of such conversion.
Section 14.3 Antidilution. The Conversion Price shall be subject to
adjustment as follows:
(a) In case the Company shall at any time or from time to time
(A) pay or make a dividend or make a distribution (other than a dividend or
distribution paid to the Trustee in the manner provided in Section 4.14) on
the outstanding shares of Common Stock in capital stock (which, for purposes
of this Section 14.3(a) shall include, without limitation, any options,
warrants or other rights to acquire capital stock) of the Company, (B)
subdivide the outstanding shares of Common Stock into a larger number of
shares, (C) combine the outstanding shares of Common Stock into a smaller
number of shares, (D) issue any shares of its capital stock in a
reclassification of the Common Stock or (E) pay a dividend or make a
distribution (other than a dividend or distribution
paid or made to the escrow account in the manner provided in Section 4.14 of
this Indenture) on the outstanding shares of Common Stock in securities of the
Company as a redemption pursuant to or trigger of a shareholder rights plan,
"poison pill" or similar arrangement, then, and in each such case, the
Conversion Price in effect immediately prior to such event shall be adjusted
(and any other appropriate actions shall be taken by the Company) so that the
Holder of Notes thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock or other securities of the
Company that such Holder would have owned or would have been entitled to
receive upon or by reason of any of the events described above, had such Note
been converted immediately prior to the occurrence of such event at the
Designated Value as of such date. An adjustment made pursuant to this Section
14.3(a) shall become effective retroactively (1) in the case of any such
dividend or distribution, to a date immediately following the close of
business on the record date for the determination of Holders of Common Stock
entitled to receive such dividend or distribution or (2) in the case of any
such subdivision, combination or reclassification, to the close of business on
the day upon which such corporate action becomes effective.
(b) In case the Company shall at any time or from time to time
issue shares of Common Stock (or securities convertible into or exchangeable
for Common Stock, or any options, warrants or other rights to acquire shares
of Common Stock other than rights issued in connection with a shareholders'
rights plan, "poison pill" or similar arrangement) for a consideration per
share less than the Current Market Price per share of Common Stock then in
effect on the issuance date (the "Reference Date") referred to in the
following sentence (treating the price per share of any security convertible
or exchangeable or exercisable into Common Stock as equal to (A) the sum of
the price for such security convertible, exchangeable or exercisable into
Common Stock plus any additional consideration payable (without regard to any
anti-dilution adjustments) upon the conversion, exchange or exercise of such
security into Common Stock divided by (B) the number of shares of Common Stock
initially underlying such convertible, exchangeable or exercisable security),
then, and in each such case, the Conversion Price then in effect shall be
adjusted by dividing the Conversion Price in effect on the day immediately
prior to the Reference Date by a fraction (x) the numerator of which shall be
the sum of the number of shares of Common Stock outstanding on the Reference
Date plus the number of additional shares of Common Stock issued or to be
issued (or the maximum number into which such convertible or exchangeable
securities initially may convert or exchange or for which such options,
warrants or other rights initially may be exercised) and (y) the denominator
of which shall be the sum of the number of shares of Common Stock outstanding
on the Reference Date plus the number of shares of Common Stock which the
aggregate consideration for the total number of such additional shares of
Common Stock so issued or be issued upon the conversion, exchange or exercise
of such convertible or exchangeable securities or options, warrants or other
rights (plus the aggregate amount of any additional consideration initially
payable upon such conversion, exchange or exercise of such security) would
purchase at the Current Market Price per share of Common Stock on the
Reference Date. Such adjustment shall be made whenever such shares,
securities, options, warrants or other rights are issued other than rights
issued in connection with a shareholders' rights plan, "poison pill" or
similar arrangement, and shall become effective retroactively to a date
immediately following the close of business (1) in the case of issuance to
shareholders of the Company, as such, on the record date for the determination
of shareholders entitled to receive such shares, securities, options, warrants
or other rights and (2) in all other cases, on the date ("issuance date") of
such issuance; provided that:
(i) the determination as to whether an adjustment is
required to be made pursuant to this Section 14.3(b) shall be made upon
the
issuance of such shares or such convertible or exchangeable securities,
options, warrants or other rights;
(ii) no adjustment in the Conversion Price shall be made
pursuant to this Section 14.3(b) as a result of any issuance of
securities by the Company in respect of which an adjustment to the
Conversion Price is made pursuant to Section 14.3(a).
(c) In case the Company shall at any time or from time to time
distribute to all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the resulting or surviving corporation and the Common Stock is not
changed or exchanged), cash, evidences of indebtedness of the Company or
another issuer, securities of the Company or another issuer or other assets
(excluding (A) dividends or distributions paid on behalf of noteholders to the
Trustee in the manner provided in Section 4.14 hereof, (B) Regular Dividends,
and (C) dividends payable in shares of Common Stock for which adjustment is
made under Section 14.3(a)) or rights or warrants to subscribe for or purchase
securities of the Company (excluding those referred to in Section 14.3(b) or
those in respect of which an adjustment in the Conversion Price is made
pursuant to Section 14.3(a) and (b) and excluding any rights issued in
connection with a shareholders' rights plan, "poison pill" or similar
arrangement), then, and in each such case, the Conversion Price then in effect
shall be adjusted by dividing the Conversion Price in effect immediately prior
to the date of such distribution by a fraction (x) the numerator of which
shall be the Current Market Price of the Common Stock on the record date
referred to below and (y) the denominator of which shall be such Current
Market Price of the Common Stock less the then Fair Market Value (as
determined by the Board of Directors unless Holders of at least 51% of the
aggregate Accreted Value of the Notes outstanding request that the Company
obtain an opinion of an independent nationally recognized investment banking
firm mutually agreed by the Company and such Holders (the expense of which
shall be borne equally by the Company on the one hand and such Holders on the
other), in which event Fair Market Value shall be as determined by such
investment banking firm) of the portion of the cash, evidences of
indebtedness, securities or other assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock (but
such denominator not to be less than one). Such adjustment shall be made
whenever any such distribution is made and shall become effective
retroactively to a date immediately following the close of business on the
record date for the determination of shareholders entitled to receive such
distribution.
(d) In case a tender or exchange offer made by the Company or
any Subsidiary for all or any portion of the Common Stock shall expire and
such tender or exchange offer (as amended upon the expiration thereof) shall
require the payment to stockholders of consideration per share of Common Stock
having a Fair Market Value (as determined in a manner consistent with Section
4.13(c)) that as of the last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer (as it may be amended)
exceeds the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Price shall be reduced so that
the same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the Expiration Time by a fraction the numerator
of which shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) on the Expiration Time multiplied by the
Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time and the denominator of which shall be the sum of (x) the
Fair Market Value (determined in a manner consistent with Section 4.13(c)) of
the aggregate consideration payable to stockholders based on the acceptance
(up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
so accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) on the Expiration Time and the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event
that the Company is obligated to purchase shares pursuant to any such tender
or exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price that would
then be in effect if such tender or exchange offer had not been made.
(e) In the case the Company, at any time or from time to time,
shall take any action affecting its Common Stock similar to or having an
effect similar to any of the actions described in any of Section 14.3(a)
through Section 14.3(c), inclusive, or Section 14.7 (but not including any
action described in any such Section) and the Board of Directors in good faith
determines that it would be equitable in the circumstances to adjust the
Conversion Price as a result of such action, then, and in each such case, the
Conversion Price shall be adjusted in such manner and at such time as the
Board of Directors in good faith determines would be equitable in the
circumstances (such determination to be evidenced in a resolution, a certified
copy of which shall be mailed to the Holders of the Notes).
(f) Notwithstanding anything herein to the contrary, no
adjustment under this Section 14.3 need be made to the Conversion Price unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price then in effect. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment, which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% of such
Conversion Price.
Section 14.4 No Adjustment. If the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive a
dividend or other distribution, and shall thereafter and before the
distribution to shareholders thereof legally abandon its plan to pay or
deliver such dividend or distribution, then thereafter no adjustment in the
Conversion Price then in effect shall be required by reason of the taking of
such record.
Section 14.5 Officers' Certificate. Upon any increase or decrease in
the Conversion Price, then, and in each such case, the Company promptly shall
deliver to each registered Holder at least 10 Business Days after effecting
any of the foregoing transactions an Officers' Certificate setting forth in
reasonable detail the event requiring the adjustment and the method by which
such adjustment was calculated and specifying the increased or decreased
Conversion Price then in effect following such adjustment.
Section 14.6 Fractional Shares. No fractional shares or scrip
representing fractional shares shall be issued upon the conversion of a Note
or any portion thereof. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares of Common
Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate Accreted Value of the Notes so surrendered. If the conversion of any
Note (or any portion thereof) results in a fraction, an amount equal to such
fraction multiplied by the Market Price of the Common
Stock on the Business Day preceding the day of conversion shall be paid to
such Holder in cash by the Company.
Section 14.7 Reorganization, Etc. In case of any capital
reorganization or reclassification or other change of outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value), or in case of any consolidation or
merger of the Company with or into another Person (other than a consolidation
or merger in which the Company is the resulting or surviving Person and which
does not result in any reclassification or cancellation or conversion of
shares of Capital Stock) or any sale or conveyance of the properties and
assets of the Company as, or substantially as, an entirety to any other
corporation, as a result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, (any of the foregoing, a
"Transaction"), the Company, or such successor or purchasing Person, as the
case may be, shall execute and deliver to each Holder of a Note at least 10
Business Days prior to effecting a Transaction, a certificate that the Holder
of each Note then outstanding shall have the right thereafter to convert such
Note into the kind and amount of shares of stock or other securities (of the
Company or another issuer) or property or cash receivable upon such
Transaction by a holder of the number of shares of Common Stock into which
such Note could have been converted immediately prior to such Transaction.
Such certificate shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article Fourteen. If, in the case of any such Transaction, the stock, other
securities, cash or property receivable thereupon by a holder of Common Stock
includes shares of stock or other securities of a Person other than the
successor or purchasing Person and other than the Company, which controls or
is controlled by the successor or purchasing Person or which, in connection
with such Transaction, issues stock, securities, other property or cash to
holders of Common Stock, then such certificate also shall be executed by such
Person, and such Person shall, in such certificate, specifically acknowledge
the obligations of such successor or purchasing Person and acknowledge its
obligations to issue such stock, securities, other property or cash to the
Holders of Notes upon conversion of the Notes as provided above. The
provisions of this Section 14.7 and any equivalent thereof in any such
certificate similarly shall apply to successive Transactions.
Section 14.8 Notice of Certain Events. In case at any time or from
time to time:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock;
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any shares
of stock of any class or of any other rights or warrants;
(c) there shall be any reclassification of the Common Stock, or
any consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or any sale or other
disposition of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall mail to each Holder of the Notes at such Holder's
address as it appears in the Notes Register, as promptly as possible but in
any event at least 10 days prior to the applicable date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights or warrants or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y)
the date on which such reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up is expected to become
effective. Such notice also shall specify the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for shares of stock or other securities or property or cash
deliverable upon such reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up.
Section 14.9 Taxes. The issuance or delivery of certificates for
Common Stock upon the conversion of Notes pursuant to Section 14.1, shall be
made without charge to the converting Holder of Notes for such certificates or
for any tax (except for any tax levied under foreign laws) in respect of the
issuance or delivery of such certificates or the securities represented
thereby, and such certificates shall be issued or delivered in the respective
names of, or (subject to compliance with the applicable provisions of federal
and state securities laws) in such names as may be directed by, the Holders of
the Note so converted; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate in a name other
than that of the Holder of the Notes so converted, and the Company shall not
be required to issue or deliver such certificate unless or until the Person or
Persons requesting the issuance or delivery thereof shall have paid to the
Company the amount of such tax or shall have established to the reasonable
satisfaction of the Company that such tax has been paid.
Section 14.10 Trustee Adjustment Disclaimer. The Trustee has no duty
to determine when an adjustment under this Article Fourteen should be made,
how it should be made or what it should be. The Trustee has no duty to
determine whether a supplemental indenture need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall not be
accountable for and makes no representation as to the validity or value of any
securities or assets issued upon conversion of Notes. The Trustee shall not be
responsible for the Company's failure to comply with this Article Fourteen.
Each conversion agent (other than the Company or an Affiliate of the Company)
shall have the same protection under this Section 14.10 as the Trustee.
ARTICLE 15
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 15.1 Satisfaction and Discharge of Indenture. If at any time
the Company shall have delivered to the Trustee canceled or for cancellation
all Notes theretofore authenticated (other than any Notes which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.10) and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect and the Trustee, on demand of and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Notes.
Section 15.2 [intentionally omitted]
Section 15.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture all moneys then held by
any paying agent under the provisions of this Indenture shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such
moneys.
Section 15.4 Repayment of Moneys Held by Trustee. Any moneys
deposited with or paid to the Trustee or any paying agent pursuant to any
provision of this Indenture for payment of the Principal of or interest on any
Note, or distributions and interest called for by Section 4.14, and not
applied but remaining unclaimed by the Holders of the Notes for two years
after the date upon which the Principal of, interest on such Notes or
distributions and interest called for by Section 4.14, as the case may be,
shall have become due and payable, shall be repaid to the Company by the
Trustee or such paying agent on written demand; and the Holder of any of the
Notes shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect.
ARTICLE 16
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 16.1 Incorporators, Shareholders, Officers, Directors and
Employees of the Company Exempt from Individual Liability. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any
Note, or for any claim based thereon or otherwise in respect thereof, shall be
had against any incorporator, shareholder, officer, director or employee, as
such, past, present or future, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Notes.
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.1 Successors and Assigns of the Company Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section 17.2 Acts of Board, Committee or Officer of Successor
Corporation Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall
at the time be the lawful sole successor of the Company.
Section 17.3 Surrender of Powers by the Company. The Company by
instrument in writing executed by authority of two-thirds of its Board of
Directors and
delivered to the Trustee may surrender any of the powers or rights reserved to
the Company and thereupon such power or right so surrendered shall terminate
as to the Company and as to any successor corporations.
Section 17.4 Required Notices or Demands May be Served by Mail. Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Notes to
or on the Company may be given or served by being deposited postage prepaid in
a post office letter box addressed as follows: Chief Financial Officer,
Cincinnati Xxxx Inc., 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000. Any
notice, direction, request or demand by any Noteholder to or upon the Trustee
shall be deemed to have been sufficiently given or made for all purposes if
given or made in writing at the Principal Corporate Trust Office of the
Trustee.
Section 17.5 Officers' Certificate and Opinion of Counsel. Upon any
application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (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 such
person, he or she has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Section 17.6 Payments Due on Non-business Days. If the date of
maturity of interest on or Principal of the Notes shall not be a Business Day,
then payment of interest or Principal 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 date of maturity, and no interest shall accrue for the period
after such date.
Section 17.7 Provisions Required by Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with any provision included in this Indenture which is required to
be included in this Indenture by any of Section 310 to 317, inclusive, of the
Trust Indenture Act, such required provision shall control.
Section 17.8 Indenture May be Executed in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together constitute but one and
the same instrument.
Section 17.9 Governing Law. This Indenture and each Note shall be
governed by and construed in accordance with the laws of the State of New York
without regard to conflicts of law principles thereof. This Indenture is
subject to the Trust
Indenture Act and if any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act, which is required under such Act to
be a part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded,
as the case may be. Whether or not this Indenture is required to be qualified
under the Trust Indenture Act, the provisions of the Trust Indenture Act
required to be included in an indenture in order for such indenture to be so
qualified shall be deemed to be included in this Indenture with the same
effect as if such provisions were set forth herein and any provisions hereof
that may not be included in an indenture that is so qualified shall be deemed
to be deleted or modified to the extent such provisions would be required to
be deleted or modified in an indenture so qualified.
Section 17.10 Severability. In case any provision of this Indenture
or the Notes 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.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, CINCINNATI XXXX INC. has caused this Indenture
to be signed and acknowledged by its Chairman, its President, one of its
Executive Vice Presidents or its Chief Financial Officer or its Treasurer, and
THE BANK OF NEW YORK has caused this Indenture to be signed and acknowledged
by one of its Vice Presidents. Executed and delivered as of the day and year
first written above.
CINCINNATI XXXX INC.
By /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President, Treasurer
THE BANK OF NEW YORK
By /s/ Xxxx Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Vice President
APPENDIX A
[FORM OF NOTE]
[FACE]
[DTC Legend]
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,393.65 PRINCIPAL AMOUNT OF THIS NOTE AT MATURITY, THE ISSUE PRICE
IS $1,000, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $864.01, THE ISSUE DATE IS
[JULY 21, 1999] AND THE YIELD TO MATURITY IS 6.75% PER ANNUM, COMPOUNDED,
SEMI-ANNUALLY.
NO. $
--------------------------- -----------------
CINCINNATI XXXX INC.
CUSIP NO.
---------
6.75% CONVERTIBLE SUBORDINATED NOTE
DUE 2009
CINCINNATI XXXX INC., an Ohio corporation (herein referred to as the
"Company"), for value received, hereby promises to pay to [ ], or registered
assigns, at the office or agency of the Company in the City of Cincinnati,
State of Ohio, or at the option of the registered holder, at the office or
agency of the Company in the Borough of Manhattan, The City of New York, State
of New York, the Full Accreted Value (as defined herein) of this Note on July
21, 2009 in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay or accrete interest, at the rate per annum specified in the
title of this Note as more fully described on the reverse hereof, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto at such address as
it shall appear on the Note Register. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the appropriate certificate of authentication hereon shall have been
executed by or on behalf of the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, Cincinnati Xxxx Inc. has caused this Instrument
to be signed by its duly authorized officers, by a facsimile of each of their
signatures.
CINCINNATI XXXX INC.
By
----------------------------------
Name:
Title:
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Notes of the issue designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee,
By
----------------------------------
Authorized Signatory
Date:
---------------
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
This is one of the Notes of the issue designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee,
By
----------------------------------
Authenticating Agent
By
----------------------------------
Authorized Signature
Date:
---------------
[FORM OF NOTE]
[REVERSE]
CINCINNATI XXXX INC.
6.75% CONVERTIBLE SUBORDINATED NOTE
DUE 2009
This Note is one of a duly authorized issue of Notes of the Company,
designated as set forth on the face hereof (herein referred to as the
"Notes"), limited to the aggregate original issue amount of $ ,
all issued or to be issued under and pursuant to an indenture dated as of
(herein referred to as the "Indenture"), duly executed and
delivered by the Company and The Bank of New York, as Trustee (herein referred
to as the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Notes.
Capitalized terms not otherwise defined in this Note shall have the
meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the Accreted Value hereof may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture permits, subject to the exceptions therein provided,
that the Company and the Trustee, with the consent of the holders of not less
than 51% in aggregate Accreted Value of the Notes at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in
any manner the rights of the holders of the Notes. It is also provided in the
Indenture that the holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the holders of all of the Notes
waive any past default under the Indenture and its consequences. Any such
consent or waiver by the holder of any Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of such Note and of any Note issued upon the
transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation of such consent or waiver is made upon such Note
or such other Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal or Accreted Value of (and
premium, if any) and interest on this Note at the places, at the respective
times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable as registered Notes without coupons in
denominations of $1,000 in original issue price and any integral multiple of
$1,000. At
either of the offices or agencies of the Company referred to on the face
hereof and in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged without a service charge for a like
aggregate principal amount of Notes of other authorized denominations.
The Company promises to pay cash interest on this Note at the rate
and in the manner specified below. Prior to July 21, 2004 (the "Full Accretion
Date"), cash interest will not accrue or be payable on this Note, but this
Note will accrete on a daily basis, compounded semi-annually on January 21 and
July 21 of each year, at the rate of 6.75% per annum of the Accreted Value of
this Note from the date of issuance of this Note through the Full Accretion
Date. On the Full Accretion Date, the Accreted Value of each $1,000 of
original issue amount of this Note will be equal to $1,395.65 (the "Full
Accreted Value"). From the Full Accretion Date, interest on this Note will
accrue on the Full Accreted Value of this Note at the rate of 6.75% per annum
from the most recent Interest Payment Date to which interest has been paid or,
if no interest has been paid, from the Full Accretion Date. The Company will
pay, in cash, such interest semiannually in arrears on January 21 and July 21
of each year (each an "Interest Payment Date"), commencing on January 21,
2005, or if any such day is not a Business Day on the next succeeding Business
Day, to holders of record at the close of business on the January 6 or July 6
immediately preceding the Interest Payment Date (a "Regular Record Date"),
except that interest not so punctually paid or duly provided for, if any, will
be paid to the person in whose name this Note is registered as of the close of
business on a special record date to be fixed by the Company (a "Special
Record Date" and each Regular Record Date and Special Record Date, a "Record
Date"), notwithstanding the subsequent cancellation of this Note prior to such
Interest Payment Date. Upon any conversion of this Note or any portion thereof
into Common Stock following the Full Accretion Date, only if such conversion
occurs (x) following notice by the Company of its option to redeem this Note
under Section 13.1 of the Indenture, (y) in connection with a Change of
Control or (z) on or after the Record Date and prior to the applicable
Interest Payment Date, the Company will pay, in cash, any accrued and unpaid
interest on this Note (or the portion being converted). Accretions and
interest will be computed on the basis of a 360-day year consisting of twelve
30-day months.
The Notes may be represented by one or more global Notes deposited
with the Depository Trust Company ("DTC") and registered in the name of the
nominee of DTC, with certain limited exceptions. So long as DTC or any
successor depository or its nominee is the registered Holder of a global Note,
DTC, such depository or such nominee, as the case may be, will be considered
to be the sole Holder of the Notes for all purposes of the Indenture. Except
as provided below, an owner of a beneficial interest in a global Note will not
be entitled to have Notes represented by such global Note registered in such
owner's name, will not receive or be entitled to receive physical delivery of
the Notes in certificated form and will not be considered the owner or Holder
thereof under the Indenture. Each person owning a beneficial interest in a
global Note must rely on DTC's procedures and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a Holder under the Indenture. If
the Company requests any action of Holders or if an owner of a beneficial
interest in a global Note desires to take any action that a Holder is entitled
to take under the Indenture, DTC will authorize the participants holding the
relevant beneficial interests to give or take such action, and such
participants will otherwise act upon the instructions of beneficial owners
holding through them.
If at any time DTC notifies the Company that it is unwilling or
unable to continue as depository for the global Note or Notes or if at any
time DTC ceases to be a clearing agency registered under the Security Exchange
Act of 1934, as amended, if so
required by applicable law or regulation, the Company shall appoint a
successor depository with respect to such global Note or Notes. If a successor
depository for such global Note or Notes is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
unwillingness, inability or ineligibility or the Company, in its sole
discretion, determines at any time that all Outstanding Notes (but not less
than all) issued or issuable in the form of one or more global Notes shall no
longer be represented by such global Notes, then the Company shall execute,
and the Trustee shall authenticate and deliver, definitive Notes of like
series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Note or Notes. If any
beneficial owner of an interest in a permanent global Note is otherwise
entitled to exchange such interest for Notes of such series and of like tenor
and principal amount of another authorized form and denomination, as
contemplated by the Indenture and provided that any applicable notice provided
in the permanent global Note shall have been given then the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Notes in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Note.
Upon the exchange of a Note in global form for Notes in certificated
form, such Note in global form shall be canceled by the Trustee. Notes in
certificated form issued in exchange for a Note in global form shall be
registered in such names and in such authorized denominations as the
Depositary for such Note in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Notes to the Persons in whose names such Notes are
so registered.
This Note shall be subject to the provisions regarding redemption
and repurchase set forth in Article Thirteen of the Indenture.
This Note shall be convertible into shares of Common Stock in
accordance with Article Fourteen of the Indenture.
This Note is subordinated to all Senior Debt. To the extent provided
in Article Eleven of the Indenture, Senior Debt must be paid before principal
or Accreted Value, premium, if any, or interest on, this Note may be paid. The
Company and the Holder of this Note, by accepting this Note, agree to the
subordination provisions contained in Article Eleven of the Indenture.
None of the Company, the Trustee, any Paying Agent or the Note
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in this Note in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any
depository, as a Holder, with respect to this Note in global form or impair,
as between such depository and owners of beneficial interests in such global
Note, the operation of customary practices governing the exercise of the
rights of such depository (or its nominee) as Holder of such global Note.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Note or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
This Note shall be deemed a contract made under the laws of the
State of New York and for all purposes shall be governed by and construed in
accordance with the laws of said State.
[END OF FORM OF NOTE]
