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EXHIBIT 4.6
CALPINE CORPORATION
TO
WILMINGTON TRUST COMPANY,
as Trustee
-----------------------
Indenture
Dated as of August 9, 2000
-----------------------
up to $535,000,000
Convertible Subordinated Debentures due August 1, 2030
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TABLE OF CONTENTS
ARTICLE I
Definitions and Other
Provisions of General Application ................................2
SECTION 1.01 Definitions ......................................................2
SECTION 1.02 Compliance Certificates and Opinions ............................13
SECTION 1.03 Form of Documents Delivered to Trustee ..........................14
SECTION 1.04 Acts of Holders; Record Dates ...................................14
SECTION 1.05 Notices, Etc., to Trustee and the Company .......................16
SECTION 1.06 Notice to Holders; Waiver .......................................16
SECTION 1.07 Conflict with Trust Indenture Act ...............................17
SECTION 1.08 Effect of Headings and Table of Contents ........................17
SECTION 1.09 Successors and Assigns ..........................................17
SECTION 1.10 Separability Clause .............................................17
SECTION 1.11 Benefits of Indenture ...........................................17
SECTION 1.12 Governing Law ...................................................17
SECTION 1.13 Legal Holidays ..................................................17
ARTICLE II
Security Forms .......................................18
SECTION 2.01 Forms Generally .................................................18
SECTION 2.02 Initial Issuance to Property Trustee ............................18
SECTION 2.03 Additional Provisions Required in Global Security ...............19
SECTION 2.04 Issuance of Global Securities to Holders ........................19
ARTICLE III
The Securities .......................................20
SECTION 3.01 Title and Terms .................................................20
SECTION 3.02 Denominations ...................................................21
SECTION 3.03 Execution, Authentication, Delivery and Dating ..................21
SECTION 3.04 Temporary Securities ............................................22
SECTION 3.05 Global Securities ...............................................23
SECTION 3.06 Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges .................................24
SECTION 3.07 Mutilated, Destroyed, Lost and Stolen Securities ................26
SECTION 3.08 Payment of Interest; Interest Rights Preserved ..................27
SECTION 3.09 Persons Deemed Owners ...........................................29
SECTION 3.10 Cancellation ....................................................29
SECTION 3.11 Right of Set Off ................................................29
SECTION 3.12 CUSIP Numbers ................: .................................29
SECTION 3.13 Extension of Interest Payment Period; Notice of
Extension........................................................29
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SECTION 3.14 Paying Agent, Security Registrar and Conversion Agent...........................30
ARTICLE IV
Satisfaction and Discharge .....................................................30
SECTION 4.01 Satisfaction and Discharge of Indenture ........................................31
SECTION 4.02 Application of Trust Money .....................................................32
ARTICLE V
Remedies...........................................32
SECTION 5.01 Events of Default ..............................................................32
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment .............................33
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................................35
SECTION 5.04 Trustee May File Proofs of Claim ...............................................35
SECTION 5.05 Trustee May Enforce Claims Without Possession of
Securities......................................................................36
SECTION 5.06 Application of Money Collected .................................................36
SECTION 5.07 Limitation on Suits ............................................................36
SECTION 5.08 Unconditional Right of Holders to Receive Principal
and Interest and Convert .......................................................37
SECTION 5.09 Restoration of Rights and Remedies .............................................37
SECTION 5.10 Rights and Remedies Cumulative .................................................37
SECTION 5.11 Delay or Omission Not Waiver ...................................................38
SECTION 5.12 Control by Holders .............................................................38
SECTION 5.13 Waiver of Past Defaults ........................................................38
SECTION 5.14 Undertaking for Costs ..........................................................38
SECTION 5.15 Waiver of Stay or Extension Laws ...............................................39
SECTION 5.16 Enforcement by Holders of Preferred Securities .................................39
ARTICLE VI
The Trustee.........................................39
SECTION 6.01 Certain Duties and Responsibilities ............................................39
SECTION 6.02 Notice of Defaults .............................................................40
SECTION 6.03 Certain Rights of Trustee ......................................................40
SECTION 6.04 Not Responsible for Recitals or Issuance of Securities .........................41
SECTION 6.05 May Hold Securities ............................................................41
SECTION 6.06 Money Held in Trust ............................................................41
SECTION 6.07 Compensation and Reimbursement .................................................41
SECTION 6.08 Disqualification; Conflicting Interests ........................................42
SECTION 6.09 Corporate Trustee Required; Eligibility ........................................42
SECTION 6.10 Resignation and Removal, Appointment of Successor ..............................43
SECTION 6.11 Acceptance of Appointment by Successor .........................................44
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business ....................................................................44
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SECTION 6.13 Preferential Collection of Claims Against Company ..............44
ARTICLE VII
Holders' Lists and Reports by Trustee and Company ..............45
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders ......45
SECTION 7.02 Preservation of Information; Communications to
Holders.........................................................45
SECTION 7.03 Reports by Trustee .............................................45
SECTION 7.04 Reports by Company .............................................45
SECTION 7.05 Tax Reporting ..................................................46
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease ...........46
SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms............46
SECTION 8.02 Successor Substituted ..........................................47
ARTICLE IX
Supplemental Indentures ........................................47
SECTION 9.01 Supplemental Indentures Without Consent of Holders .............47
SECTION 9.02 Supplemental Indentures with Consent of Holders ................48
SECTION 9.03 Execution of Supplemental Indentures ...........................49
SECTION 9.04 Effect of Supplemental Indentures ..............................49
SECTION 9.05 Conformity with Trust Indenture Act ............................49
SECTION 9.06 Reference in Securities to Supplemental Indentures .............49
ARTICLE X
Covenants; Representations and Warranties ......................50
SECTION 10.01 Payment of Principal and Interest ..............................50
SECTION 10.02 Maintenance of Office or Agency ................................50
SECTION 10.03 Money for Security Payments to Be Held in Trust ................50
SECTION 10.04 Statement by Officers as to Default ............................51
SECTION 10.05 Limitation on Dividends; Transactions with Affiliates;
Covenants as to the Trust ......................................51
SECTION 10.06 Payment of Expenses of the Trust ...............................52
SECTION 10.07 Registration Rights ............................................53
ARTICLE XI
Redemption of Securities .......................................53
SECTION 11.01 Optional Redemption ............................................53
SECTION 11.02 [Reserved]......................................................54
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SECTION 11.03 Tax Event Redemption ............................................................54
SECTION 11.04 Redemption at Stated Maturity ...................................................55
SECTION 11.05 Selection by Trustee of Securities to Be Redeemed ...............................55
SECTION 11:06 Notice of Redemption ............................................................55
SECTION 11.07 Deposit of Redemption Price .....................................................56
SECTION 11.08 Securities Payable on Redemption Date ...........................................56
SECTION 11.09 Securities Redeemed in Part .....................................................57
ARTICLE XII
Subordination of Securities ...................................................57
SECTION 12.01 Agreement to Subordinate ........................................................57
SECTION 12.02 Default on Senior Debt ..........................................................57
SECTION 12.03 Liquidation; Dissolution; Bankruptcy ............................................58
SECTION 12.04 Subrogation .....................................................................59
SECTION 12.05 Trustee to Effectuate Subordination .............................................60
SECTION 12.06 Notice by the Company ...........................................................60
SECTION 12.07 Rights of the Trustee; Holders of Senior Debt ...................................61
SECTION 12.08 Subordination May Not Be Impaired ...............................................61
ARTICLE XIII
Conversion of Securities .....................................................62
SECTION 13.01 Conversion Rights ...............................................................62
SECTION 13.02 Conversion Procedures ...........................................................62
SECTION 13.03 Conversion Price Adjustments ....................................................63
SECTION 13.04 Reclassification, Consolidation, Merger or Sale of
Assets...........................................................................69
SECTION 13.05 Notice of Adjustments of Conversion Price .......................................70
SECTION 13.06 Prior Notice of Certain Events ..................................................70
SECTION 13.07 Adjustments in Case of Fundamental Changes ......................................71
SECTION 13.08 Dividend or Interest Reinvestment Plans .........................................74
SECTION 13.09 Certain Additional Rights .......................................................74
SECTION 13.10 Restrictions on Common Stock Issuable Upon
Conversion ......................................................................74
SECTION 13.11 Trustee Not Responsible for Determining Conversion
Price or Adjustments ............................................................75
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INDENTURE, dated as of August 9, 2000, between Calpine Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company") having its principal office at 00 Xxxx Xxx
Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, and Wilmington Trust Company, a
Delaware banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, Calpine Capital Trust III, a Delaware business trust
(the "Trust"), governed by the Amended and Restated Declaration of Trust among
the Company, as depositor, Wilmington Trust Company, as property trustee (the
"Property Trustee"), and Wilmington Trust Company, as Delaware trustee (the
"Delaware Trustee"), and Xxxxx Xxxxxxxxxx, Xxx X. Xxxxxx and Xxxxxx X. Xxxxx, as
administrative trustees (together with the Property Trustee and the Delaware
Trustee, the "Issuer Trustees"), and the holders from time to time of undivided
beneficial interest in the assets of the Trust, dated as of August 9, 2000 (the
"Declaration"), pursuant to the Purchase Agreement (the "Purchase Agreement")
dated August 3, 2000, among the Company, the Trust and the Initial Purchasers
named therein, will issue and sell up to 9,000,000 (or up to 10,350,000 to the
extent the over-allotment option granted by the Trust is exercised in full) of
its Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)(SM) (the
"Preferred Securities") with a liquidation preference of $50 per Preferred
Security, having an aggregate liquidation amount with respect to the assets of
the Trust of up to $450,000,000 (or up to $517,500,000 to the extent the
over-allotment option granted by the Trust is exercised in full);
WHEREAS, the administrative trustees of the Trust, on behalf of
the Trust, will execute and deliver to the Company Common Securities evidencing
an ownership interest in the Trust, registered in the name of the Company, in an
aggregate amount equal to at least three percent of the capitalization of the
Trust, equivalent to up to 280,000 Common Securities, (or up to 350,000 to the
extent the over-allotment option granted by the Trust is exercised in full) with
a liquidation preference of $50 per Common Security, having an aggregate
liquidation amount with respect to the assets of the Trust of up to $14,000,000
(or up to $17,500,000 to the extent the over-allotment option granted by the
Trust is exercised in full) (the "Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase Securities (as
defined below) from the Company in an aggregate principal amount of up to
$464,000,000 (or up to $535,000,000 to the extent the over-allotment option
granted by the Trust is exercised in full);
WHEREAS, the Company is guaranteeing the payment of
distributions on the Preferred Securities (as defined herein), and payment of
the Redemption Price (as defined herein) and payments on liquidation with
respect to the Preferred Securities, to the extent provided in the Guarantee
(the "Guarantee") between the Company and Wilmington Trust Company, as Guarantee
Trustee, for the benefit of the Holders of the Trust Securities from time to
time;
WHEREAS, the Company has duly authorized the creation of an
issue of its Convertible Subordinated Debentures Due August 1, 2030 (the
"Securities"), of
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substantially the tenor and amount hereinafter set forth and to provide therefor
the Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, so long as the Trust is a Holder of Securities, and any
Preferred Securities are outstanding, the Declaration provides that the Holders
of Preferred Securities may cause the Conversion Agent (as defined herein) to
(i) exchange such Preferred Securities for Securities held by the Trust and (ii)
immediately convert such Securities into Common Stock (as defined herein);
WHEREAS, the Company, the Trust, the Remarketing Agent (as
defined herein) and Wilmington Trust Company, as Tender Agent have entered into
a Remarketing Agreement (as defined herein) dated as of the date hereof pursuant
to which such Remarketing Agent has agreed to use its best efforts to (i)
remarket all Preferred Securities tendered for remarketing (the "Remarketing")
and (ii) establish, beginning on the Reset Date (as defined herein), (a) the
rate at which distributions will accrue on the Preferred Securities, (b) the
number of shares of Common Stock, if any, into which each Preferred Security may
be converted and (c) the price, manner and time, if any, at which the Preferred
Securities may be redeemed; and
WHEREAS, all things necessary to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
Definitions and Other
Provisions of General Application
SECTION 1.01 Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
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(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Amounts" has the meaning specified in Section
3.01(d).
"Additional Interest" has the meaning set forth in the
Registration Rights Agreement.
"Additional Payments" means Compounded Interest and Additional
Amounts, if any.
"Additional Sums" has the meaning specified in Section
3.01(d).
"Adjusted Reference Market Price" has the meaning specified in
Section 13.07(a)(i).
"Adjusted Relevant Price" has the meaning specified in Section
13.07(a)(i).
"Administrative Action" has the meaning specified in the
definition of "Tax Event" in this Section 1.01.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Security Registrar, co-registrar, Paying
Agent or Conversion Agent.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Conversion Price" has the meaning specified in
Section 13.01.
"Applicable Conversion Ratio" has the meaning specified in
Section 13.01.
"Applicable Rate" means the rate at which the Securities
accrue interest and the corresponding Trust Securities accrue distributions.
From the date of original issuance of the Securities to (but excluding) the
Reset Date, the Applicable Rate shall be 5% per annum (the "Initial Rate").
Beginning with and after the Reset Date, the Applicable Rate shall be the Term
Rate (as defined herein). In the event of a Registration Default, the Applicable
Rate shall increase as set forth in Section 10.07 hereof.
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"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the Property Trustee or the Trustee is
closed for business.
"Closing Price" has the meaning specified in Section 13.07(b).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the Second
Recital to this Indenture.
"Common Securities Guarantee" means the Common Securities
Guarantee Agreement dated of even date herewith delivered by the Company for the
benefit of the holders of the Common Securities from time to time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Article XIII, shares issuable on conversion of
Securities shall include only shares of the class designated as the Common
Stock, par value $.001 per share, of the Company at the date of this Indenture
or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which are not subject to redemption
by the Company; provided, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Common Stock Fundamental Change" has the meaning specified in
Section 13.07(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to
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the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Company Transaction" has the meaning specified in Section
13.04.
"Compounded Interest" has the meaning specified in Section
3.13.
"Conversion Agent" means the Person appointed to act on behalf
of the Holders of Preferred Securities in effecting the conversion of Preferred
Securities as and in the manner set forth in the Declaration and Section 13.02
hereof.
"Conversion Date" has the meaning specified in Section 13.02.
"Convertible Remarketing" means the remarketing of the
Preferred Securities in the Remarketing as securities which will be convertible
into Common Stock.
"Corporate Trust Office" means the principal office of the
Trustee in Wilmington, Delaware or New York, New York, at which at any
particular time its corporate trust business shall be administered and which at
the date of this Indenture is Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx, 00000.
"Declaration" has the meaning specified in the First Recital
to this Indenture.
"Debt" means (i) the principal of and premium and interest, if
any, on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings and (vii) net payment
obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts and
similar arrangements.
"Defaulted Interest" has the meaning specified in Section
3.08.
"Deferral Notice" has the meaning specified in Section 3.13.
"Deferral Period" has the meaning specified in Section 3.13.
"Delaware Trustee" has the meaning given it in the First
Recital to this Indenture.
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"Depositary" means The Depository Trust Company, or any
successor thereto.
"Direct Action" has the meaning specified in Section 5.16.
"Dissolution Tax Opinion" has the meaning specified in the
definition of "Tax Event" in this Section 1.01.
"Entitlement Date" has the meaning specified in Section
13.07(b).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"ex" date has the meaning specified in Section 13.03(vii).
"Expiration Date" has the meaning specified in Section
1.04(d).
"Expiration Time" has the meaning specified in Section
13.03(vi).
"Failed Final Remarketing" has the meaning specified in
Section 2(d) of the Remarketing Agreement.
"Fundamental Change" has the meaning specified in Section
13.07(b).
"Global Security" means a Security issued in the form
prescribed in Article II, issued to the Depositary or its nominee, and
registered in the name of the Depositary or its nominee.
"Guarantee" has the meaning specified in the Fourth Recital to
this Indenture.
"Holder" means a Person in whose name a Security is registered
in the Security Register or a Person in whose name a Preferred Security is
registered in the List of Holders, as the case may be.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Conversion Price" has the meaning specified in
Section 13.01.
"Initial Conversion Ratio" has the meaning specified in
Section 13.01.
"Initial Purchasers," with respect to the Preferred
Securities, means Credit Suisse First Boston Corporation, ING Barings LLC and
CIBC World Markets Corp.
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"Initial Rate" has the meaning specified in the definition of
"Applicable Rate" in this Section 1.01.
"Initial Redemption Price" has the meaning specified in
Section 11.01.
"Interest Payment Date" has the meaning specified in Section
3.01(b).
"Investment Company Event" has the meaning specified in the
Declaration.
"Issuer Trustees" has the meaning specific in the First
Recital to this Indenture.
"List of Holders" has the meaning specified in the
Declaration.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"90 Day Period" has the meaning specified in Section 11.03.
"NNM" means the National Market System of the National
Association of Securities Dealers, Inc., or any successor national automated
interdealer quotation system.
"Non-Stock Fundamental Change" has the meaning specified in
Section 13.07(b).
"No Recognition Opinion" means the receipt by the Property
Trustee of an opinion of a nationally recognized independent tax counsel
(reasonably acceptable to the Issuer Trustees) experienced in such matters,
which opinion may rely on published revenue rulings of the Internal Revenue
Service, to the effect that the Holders of the Preferred Securities will not
recognize any income, gain or loss for United States federal income tax purposes
as a result of the liquidation of the Trust and the distribution of the
Securities to the Holders of the Preferred Securities.
"Notice of Conversion" means the notice to be given by a
Holder of Preferred Securities to the Conversion Agent directing the Conversion
Agent to exchange such Preferred Securities for Securities and to convert such
Securities into Common Stock on behalf of such Holder.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under, or with respect to, any Debt (including claims for
rescission).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers'
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Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Company.
"OID" means original issue discount.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Optional Redemption" has the meaning specified in Section
11.01(a).
"Optional Redemption Date" means the date which is not less
than 20, nor more than 60, days following the date on which the Optional
Redemption Notice is sent, as specified in the Optional Redemption Notice (or if
such date is not a Business Day, the next succeeding Business Day).
"Optional Redemption Notice" has the meaning specified in
Section 11.01(b).
"Optional Redemption Price" has the meaning specified in
Section 11.01(a).
"Optional Redemption Ratio" has the meaning specified in
Section 13.07(a)(i).
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except: (i) Securities theretofore canceled by
the Trustee or delivered to the Trustee for cancellation; (ii) Securities for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities that have been paid pursuant to Article XI,
converted into Common Stock pursuant to Section 13.01, or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Payment Resumption Date" has the meaning specified in Section
3.13(b).
"Person" means any individual, corporation, limited liability
company, company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the First
Recital to this Indenture.
"Primary Treasury Dealer" has the meaning specified in the
Remarketing Agreement.
"Property Trustee" has the meaning specified in the First
Recital to this Indenture.
"Purchase Agreement" has the meaning specified in the First
Recital to this Indenture.
"Purchased Shares" has the meaning specified in Section
13.03(vi).
"Purchaser Stock Price" has the meaning specified in Section
13.07(b).
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture, including without limitation, the Optional Redemption Date with
respect to an Optional Redemption.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, including without limitation, the Optional Redemption Price with
respect to an Optional Redemption.
"Redemption Tax Opinion" means the receipt by the Property
Trustee of an opinion of a nationally recognized independent tax counsel
(reasonably acceptable to the Issuer Trustees) experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that (a)
the Trust would not be considered to be a grantor trust for United States
federal income tax purposes or (b) the Company would be precluded from deducting
the interest on the Securities for United States federal income tax purposes,
even after the Trust was liquidated and the Securities were distributed to the
Holders of the Preferred Securities.
"Reference Date" has the meaning specified in Section
13.03(iv).
"Reference Market Price" has the meaning specified in Section
13.07(b).
"Reference Treasury Dealer" has the meaning specified in the
Remarketing Agreement.
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"Reference Treasury Dealer Quotations" has the meaning
specified in the Remarketing Agreement.
"Registrable Securities" has the meaning specified in Section
10.07.
"Registration Default" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" has the meaning specified in
Section 10.07.
"Regular Record Date" has the meaning specified in Section
3.01(b).
"Relevant Price" has the meaning specified in Section
13.07(b).
"Remarketing" has the meaning specified in the Seventh Recital
to this Indenture.
"Remarketing Agent" means an investment bank, broker, dealer,
or other organization which, in the opinion of the Company and the Trust, is
qualified to remarket the Preferred Securities substantially in accordance with
the terms of the Remarketing Agreement. The initial Remarketing Agent shall be
Credit Suisse First Boston Corporation. The term "Remarketing Agent" shall also
include any successor Person appointed as such by the Company and the Trust.
"Remarketing Agreement" means the Remarketing Agreement with
the Remarketing Agent dated the date hereof substantially in the form set forth
in Exhibit B to this Indenture and any substantially similar agreement entered
into by the Company with any successor Remarketing Agent.
"Remarketing Notice" shall have the meaning specified in the
Remarketing Agreement.
"Reset Date" means any date that is (i) not later than August
1, 2005 (or, if such day is not a Business Day, the next succeeding Business
Day), and (ii) not earlier than 70 business days prior to August 1, 2005, as may
be determined by the Remarketing Agent, in its sole discretion, for settlement
of a successful remarketing.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the treasurer, any assistant treasurer,
any trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, and having
direct responsibility for the administration of this Indenture, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
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"Restricted Preferred Securities" means each Preferred
Security required to bear the restricted securities legend required by Section
9.02(h) of the Declaration.
"Restricted Securities" means each Security required to bear a
Restricted Securities Legend pursuant to Section 2.02 hereof.
"Restricted Securities Legend" has the meaning specified in
Section 2.02.
"Securities" has the meaning specified in the Fifth Recital to
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.06(a).
"Senior Debt" means (i) all indebtedness of the Company
evidenced by securities, debentures, bonds or other similar instruments issued
by the Company, (ii) all obligations to make net payments pursuant to the terms
of financial instruments, such as (a) securities contracts and foreign currency
exchange contracts, (b) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (c) similar financial instruments; except, in the case of
(i) above, such indebtedness and obligations that are expressly stated to rank
junior in right of payment to, or pari passu in right of payment with, the
Securities, (iii) and indebtedness or obligations of others of the kind
described in (i) and (ii) above for the payment of which the Company is
responsible or liable as guarantor or otherwise and (iv) deferrals, renewals or
extensions of any such Senior Debt; provided however, that Senior Debt shall not
be deemed to include (a) any Debt of the Company which, when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, or any succession statute thereto, was
without recourse to the Company, (b) trade accounts payable and accrued
liabilities arising in the ordinary course of business, which will not
constitute Debt for purposes of the Preferred Securities (c) any Debt of the
Company to any of its subsidiaries, except to the extent incurred for the
benefit of third parties, (d) Debt to any employee of the Company and (e) Debt
that expressly provides that it is not senior in right of payment to the
Securities.
"Shelf Registration Statement" has the meaning specified in
the Registration Rights Agreement.
"Significant Subsidiary" of any Person means a Subsidiary of
such Person meeting the requirements set forth in Rule 1-02(w) of Regulation S-X
of the Securities Act.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
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"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest or Additional Payments thereon,
means the date specified in such Security as the fixed date on which the
principal, together with any accrued and unpaid interest (and Additional
Payments, if any), of such Security or such installment of interest or
Additional Payments is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Tax Event" means the receipt by the Property Trustee of an
opinion of a nationally recognized independent tax counsel to the Company
(reasonably acceptable to the Issuer Trustees) experienced in such matters (a
"Dissolution Tax Opinion") to the effect that, as a result of (a) any amendment
to or change (including any announced prospective change (which shall not
include a proposed change), provided that a Tax Event shall not occur more than
90 days before the effective date of any such prospective change) in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any judicial decision or
official administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to
or change in the administrative position or interpretation of any Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case, by any legislative body, court, governmental agency or
regulatory body, irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such Administrative Action
or decision is announced, in each case, on or after the date of the date of
original issuance of the Securities or the issue date of the Preferred
Securities issued by the Trust, there is more than an insubstantial risk that
(x) if the Securities are held by the Property Trustee, (i) the Trust is, or
will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to interest accrued or received on the
Securities or subject to more than a de minimis amount of other taxes, duties or
other governmental charges as determined by such counsel, or (ii) any portion of
interest payable by the Company to the Trust (or OID accruing) on the Securities
is not, or within 90 days of the date of such opinion will not be, deductible by
the Company in whole or in part for United States federal income tax purposes or
(y) with respect to Securities which are no longer held by the Property Trustee,
any portion of interest payable by the Company (or OID accruing) on the
Securities is not, or within 90 days of the date of such opinion will not be,
deductible by the Company in whole or in part for United States federal income
tax purposes.
"Tender Notification Date" means a Business Day no earlier
than 10 Business Days following the date of the Remarketing Notice, or such
shorter period as agreed to by the Remarketing Agent.
"Term Call Protections" means the price, manner and time, if
any, at which the Securities may be redeemed at the option of the Company after
the Reset Date.
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The Term Call Protections, if any, will be established in connection with the
Remarketing.
"Term Provisions" shall have the meaning specified in the
Remarketing Agreement.
"Term Rate" means the rate established by the Remarketing
Agent in connection with the Remarketing at which interest shall accrue on the
Securities from and after the Reset Date.
"Term Redemption Price" has the meaning specified in Section
11.01(a).
"Trading Day" has the meaning specified in Section 13.07(b).
"Trust" has the meaning specified in the First Recital to this
Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred
Securities.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means capital stock of such
Person which ordinarily has voting power for the election of directors (or
Persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
SECTION 1.02 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act or
reasonably requested by the Trustee in connection with such application or
request. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.04) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made or caused to be made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04 Acts of Holders: Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given to or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are
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herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Outstanding Securities entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action, authorized or permitted to be given or taken by Holders.
If not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, the record date for any such action
shall be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 7.01) prior to such first
solicitation. With regard to any record date, only the Holders on such date (or
their duly designated proxies) shall be entitled to give or take the relevant
action.
(d) The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any notice of default, (ii) any declaration of
acceleration or recission and annulment referred to in Section 5.02, (iii) any
request to institute proceedings referred to in Section 5.07(2) or (iv) any
direction referred to in Section 5.12. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to join in such notice, declaration, request
or direction or recission or annulment, or to revoke the same, whether or not
such Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the date set by the
Trustee by which any such determination shall be made (the "Expiration Date") by
Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section 1.06.
(e) The ownership of Securities shall be proved by the Security
Register.
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(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(g) Without limiting the foregoing, a Holder entitled hereunder
to give or take any such action with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.05 Notices, Etc., to Trustee and the Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, Attention:
Xxxx X. Xxxxxxxxxxxx, Esq. or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 1.06 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notifi-
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cation as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
SECTION 1.07 Conflict with Trust Indenture Act. This Indenture
is, or will be upon qualification under the Trust Indenture Act, subject to the
provisions of the Trust Indenture Act and if any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. Until such time as this Indenture is qualified under
the Trust Indenture Act, the parties hereto have agreed that the provisions of
Sections 310-317, inclusive, of the Trust Indenture Act shall be incorporated
herein by reference, subject to the provisions of this Indenture. 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.
SECTION 1.08 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09 Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of Senior Debt, the
Holders of Preferred Securities (to the extent provided herein) and the Holders
of Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12 Governing Law. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS THEREOF.
SECTION 1.13 Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security or the last
date on which a Holder has the right to convert his Securities shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest (and Additional Payments, if any) or
principal or conversion of the Securities need not be made on such date, but may
be made on the next succeeding Business Day (except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day) with the same force and effect as if made on
the Interest Payment Date, Redemption Date or at the Stated Maturity or on such
last day for conversion, provided that no interest shall accrue for the period
from and
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after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
Security Forms
SECTION 2.01 Forms Generally. The Securities and the Trustee's
certificates of authentication shall be substantially in the form of Exhibit A
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). The Company shall furnish any such legend not contained in
Exhibit A to the Trustee in writing. Each Security shall be dated the date of
its authentication. The terms and provisions of the Securities set forth in
Exhibit A are part of the terms of this Indenture and to the extent applicable,
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.
The definitive Securities shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02 Initial Issuance to Property Trustee. The
Securities initially issued to the Property Trustee of the Trust shall be in the
form of one or more individual certificates in definitive, fully registered form
without coupons and shall bear the following legend (the "Restricted Securities
Legend") unless the Company determines otherwise in accordance with applicable
law:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY AND ANY COMMON STOCK OF THE
COMPANY ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER
AND THE COMPANY THAT (A) THIS SECURITY AND ANY COMMON STOCK OF THE COMPANY
ISSUABLE UPON CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE
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REQUIREMENTS OF RULE 144A, (ii) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (iii)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (i)THROUGH (iii) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
SECTION 2.03 Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in section 2.02, bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX) TO CALPINE
CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN."
SECTION 2.04 Issuance of Global Securities to Holders. The
Securities will be represented by one or more Global Securities registered in
the name of the Depositary or its nominee if, and only if, the Securities are
distributed to the holders of book-entry Trust Securities. Until such time, the
Securities shall be registered in the name of and held by the Property Trustee.
Securities distributed to holders of book-entry Trust Securities shall be
distributed in the form of one or more Global Securities registered in the name
of the Depositary or its nominee, and deposited with the Security Registrar, as
custodian for such Depositary, or held by such Depositary for credit by the
Depositary to the respective accounts of the beneficial owners of the Securities
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represented thereby (or such other accounts as they may direct). Securities
distributed to holders of Trust Securities other than book-entry Trust
Securities shall not be issued in the form of a Global Security or any other
form intended to facilitate book-entry trading in beneficial interests in such
Securities.
ARTICLE III
The Securities
SECTION 3.01 Title and Terms. (a) The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is
limited to the sum of (a) $464,000,000 plus (b) such aggregate principal amount
(which may not exceed $71,000,000 aggregate principal amount of Securities, if
any, as shall be purchased by the Trust pursuant to an option granted by the
Trust in accordance with the terms and provisions of the Purchase Agreement),
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
3.04, 3.05, 3.06, 3.07, 9.06, 11.09 or 13.01.
(b) The Securities shall be known and designated as the
"Convertible Subordinated Debentures Due August 1, 2030" of the Company. Their
Stated Maturity shall be August 1, 2030, and they shall bear interest at the
Applicable Rate, from August 9, 2000, or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided for, as
the case may be, payable quarterly (subject to deferral as set forth herein), in
arrears, on February 1, May 1, August 1 and November 1 (each an "Interest
Payment Date") of each year, commencing November 1, 2000 until the principal
thereof is paid or made available for payment, and said interest shall be paid
to the Person in whose name the Security is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the fifteenth day of each January, April, July and October
next preceding the applicable Interest Payment Date (the "Regular Record Date").
If the Reset Date is prior to the Regular Record Date for the immediately
following Interest Payment Date, then interest and Additional Amounts, if any,
accrued from and after the Reset Date to but excluding the immediately following
Interest Payment Date shall be paid on such Interest Payment Date to the Person
in whose name each Security is registered on the relevant Regular Record Date,
subject to the right of the Company to initiate a Deferral Period. If the Reset
Date is on or after the Regular Record Date for the immediately following
Interest Payment Date, then (1) interest and Additional Amounts, if any, accrued
from and after the Regular Record Date to but excluding the Reset Date shall be
paid on the immediately following Interest Payment Date to the Person in whose
name each Security is registered on the relevant Regular Record Date and (2)
interest and Additional Amounts, if any, accrued from and after the Reset Date
to but excluding the immediately following Interest Payment Date shall be paid
on the second Interest Payment Date immediately following the Reset Date to the
Person in whose name each Security is registered on the relevant Regular Record
Date for such second Interest Payment Date, subject in each case to the right of
the Company to initiate a Deferral Period. Interest will compound quarterly and
will accrue at the Applicable Rate on any interest installment in arrears for
more than one quarter or during an extension of an interest payment period as
set forth in Section 3.13 hereof.
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(c) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed in such a 30-day
month.
(d) If at any time (including upon the occurrence of a Tax
Event) while the Property Trustee is the Holder of all the Securities, the Trust
or the Property Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature ("Additional Sums") (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, subject to the provisions of Section 11.03 hereof, the
Company will pay as additional amounts on the Securities held by the Property
Trustee, such additional amounts ("Additional Amounts") as shall be required so
that the net amounts received and retained by the Trust and the Property Trustee
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust and the Property Trustee would have received
had no such taxes, duties, assessments or other governmental charges been
imposed.
(e) The principal of and interest (and Additional Payments, if
any) on the Securities shall be payable at the office or agency of the Company
in New York, New York maintained for such purpose and at any other office or
agency maintained by the Company for such purpose in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at any time that
the Property Trustee is not the sole holder of the Securities, payment of
interest may, at the option of the Company, be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account of such Person at a
financial institution located in the United States, notice of which shall have
been delivered to the Paying Agent at least ten days prior to the applicable
Interest Payment Date.
(f) The Securities shall be redeemable as provided in Article XI
hereof.
(g) The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article XII hereof.
(h) The Securities shall be convertible as provided in Article
XIII hereof.
(i) The Securities shall rank pari passu with the Company's
Convertible Subordinated Debentures due 2029 and issued pursuant to an
indenture, dated November 2, 1999, between the Company and The Bank of New York
and the Company's Convertible Subordinated Debentures due 2030 and issued
pursuant to an indenture, dated January 31, 2000, between the Company and The
Bank of New York.
SECTION 3.02 Denominations. The Securities shall be issuable
only in registered form without coupons and only in denominations of $50 and
integral multiples thereof.
SECTION 3.03 Execution, Authentication and Delivery. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its
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Vice Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.
SECTION 3.04 Temporary Securities. Pending the preparation of
definitive Securities complying with the requirements of Section 2.01, if
necessary, the Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
10.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
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SECTION 3.05 Global Securities. (a) Each Global Security issued
under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to continue as a Depositary with
respect to such Global Security, or if at any time the Depositary ceases to be a
"clearing agency" registered under the Exchange Act, at a time when the
Depositary is required to be so registered to act as such depositary and no
successor Depositary shall have been appointed by the Company within 60 days
after its receipt of such notice or its becoming aware of such cessation, (ii)
the Company in its sole discretion determines that such Global Security shall be
so exchangeable or (iii) there shall have occurred and be continuing an Event of
Default.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Security Registrar for exchange or cancellation
as provided in this Article III. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article III or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Trustee shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied by
registration instructions and, to the extent required by Section 3.06, a
certificate bearing the Restricted Securities Legend, the Trustee shall, subject
to Section 3.05(b) and as otherwise provided in this Article III, authenticate
and make available for delivery any Securities issuable in exchange for such
Global Security (or any portion thereof) in accordance with the instructions of
the Depositary. The Trustee shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interest pursuant to the rules and procedures of
the Depositary. Accordingly, any such owner's beneficial interests in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members. Neither the Trustee nor the Security Registrar shall have any
liability in respect of any transfers effected by the Depositary.
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(e) The rights of the beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
(f) No holder of a beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee or any agent of the Company or Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 3.06 Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office or in any other office or agency designated pursuant to Section
10.02 being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by this
Indenture, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 3.05, 9.06, 11.09 or 13.01 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) in the
case of a partial redemption of the Securities, to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.05 and ending at the close of business
on the day of such mailing or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
(b) Transfer and Exchange Procedures and Restrictions. The
Securities may not be transferred except in compliance with the Restricted
Securities Legend unless otherwise determined by the Company in accordance with
applicable law. Upon any distribution of the Securities to the holders of the
Trust Securities in accordance with the Declaration, the Company and the Trustee
shall enter into a supplemental indenture pursuant to Section 9.01(6) to provide
for transfer procedures and restrictions with respect to the Securities
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at the time of such distribution.
Notwithstanding any other provision of the Indenture, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 3.06(b) shall be made only in accordance with this Section
3.06(b).
(1) Non-Global Security to Global Security. If the Holder of a
Security (other than a Global Security) wishes at any time to transfer
all or any portion of such Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Global
Security, such transfer may be effected only in accordance with the
provisions of this clause (b)(1) and subject to the rules and procedures
of the Depositary. Upon receipt by the Security Registrar of (A) such
Security as provided in Section 3.06(a) and instructions satisfactory to
the Security Registrar directing that a beneficial interest in the
Global Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified Agent
Member's account and (B) such Security duly executed by such Holder or
such Holder's attorney duly authorized in writing, then the Security
Registrar shall cancel such Security (and issue a new Security in
respect of the untransferred portion thereof) as provided in Section
3.06(a) and increase the aggregate principal amount of the Global
Security by the specified principal amount as provided in Section
3.05(c).
(2) Non-Global Security to Non-Global Security. A Security that
is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a
Global Security as provided in Section 3.06(a) provided, that if such
Security to be transferred in whole or in part is a Restricted Security,
the Security Registrar shall have received the assignment form attached
to the Security duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing.
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(3) Exchanges Between Global Security and Non-Global Security. A
beneficial interest in a Global Security may be exchanged for a Security
that is not a Global Security as provided in Section 3.05.
(c) Restricted Securities Legend. (1) Except as set forth below, all
Securities shall bear the Restricted Securities Legend set forth in Section
2.02.
(2) Subject to the following clauses of this Section 3.06(c), a
Security (other than a Global Security) that does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a
Restricted Security or any portion thereof that bears such legend if, in
the Company's judgment, placing such a legend upon such new Security is
not necessary to ensure compliance with the registration requirements of
the Securities Act, and the Trustee, at the written direction of the
Company in the form of an Officers' Certificate, shall authenticate and
deliver such a new Security.
(3) Notwithstanding the foregoing provisions of this Section
3.06(c), a successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such successor Security
is a "restricted security" within the meaning of Rule 144 under the
Securities Act, in which case the Trustee, at the written direction of
the Company in the form of an Officers' Certificate, shall authenticate
and deliver a new Security bearing a Restricted Securities Legend in
exchange for such successor Security.
(4) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Security)
pursuant to an effective registration statement under the Securities Act
or pursuant to Rule 144 under the Securities Act after such registration
ceases to be effective: (A) in the case of any Restricted Security that
is a definitive Security, the Security Registrar at the direction of the
Company shall permit the Holder thereof to exchange such Restricted
Security for a definitive Security that does not bear the Restricted
Securities Legend and rescind any restriction on the transfer of such
Restricted Security; and (B) in the case of any Restricted Security that
is represented by a Global Security, the Security Registrar at the
direction of the Company shall permit the Holder of such Global Security
to exchange such Global Security for another Global Security that does
not bear the Restricted Securities Legend.
(5) If Restricted Securities are being presented or surrendered
for transfer or exchange then there shall be (if so required by the
Trustee), (A) if such Restricted Securities are being delivered to the
Security Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect; or (B) if such Restricted Securities are being transferred, a
certification from the transferor as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
SECTION 3.07 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a new
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Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08 Payment of Interest; Interest Rights Preserved.
Subject to Section 3.01(b), interest (and Additional Payments, if any) on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall FORTHWITH cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date (as defined below) for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
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the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a special
record date (the "Special Record Date") for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange (or by the
Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable-by the Trustee;
provided that any such payment shall be made in coin or currency of the
United States of America which at the time of payment is a legal tender
for payment of public and private debt.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue (including in each such case Additional
Payments), which were carried by such other Security.
In the case of any Security which is converted after any Regular
Record Date And on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(and Additional Payments, if any) (whether or not punctually paid or duly
provided for) shall be paid to the Person in whose name that security (or one or
more Predecessor Securities) is registered at the close of business on such
Regular Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, interest whose Stated Maturity is after the date of
conversion of such Security shall not be payable, and the Company shall not make
nor be required to make any other payment, adjustment or allowance with respect
to accrued but unpaid interest (and Additional Payments, if any) on the
Securities being converted, which shall be deemed to be paid in full.
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SECTION 3.09 Persons Deemed Owners. The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.08) interest (and
Additional Payments, if any) on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary. No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the fore going, nothing herein shall prevent the Company or the
Trustee from giving effect to any written certification, proxy, or other
authorization furnished by a Depositary or impair, as between the Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
SECTION 3.10 Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange or conversion shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered. shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. The Trustee shall deliver to the Company a certificate of
cancellation with respect to Securities canceled by it pursuant to this Section.
SECTION 3.11 Right of Set Off. Notwithstanding anything to the
contrary in this Indenture, the Company shall have the right to set off any
payment it is otherwise required to make hereunder to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee.
SECTION 3.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption 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 Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 3.13 Extension of Interest Payment Period; Notice of
Extension. (a) So long as no Event of Default has occurred and is continuing,
the Company shall have the right, at any time during the term of this Security,
from time to time to defer payments of interest by extending the interest
payment period from time to time for successive periods not exceeding 20
consecutive quarters for each such period (a "Deferral Period"); provided that
no Deferral Period may extend beyond (i) the maturity (whether at August 1, 2030
or by declaration of acceleration, call for redemption or otherwise) or (ii) in
the case of a Deferral Period that begins prior to the Reset Date, the
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Reset Date. To the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest payment period
pursuant to this Section 3.13, will bear interest thereon at the Applicable Rate
compounded quarterly for each quarter of the Deferral Period ("Compounded
Interest"). On the applicable Payment Resumption Date, the Company shall pay all
interest then accrued and unpaid on the Securities, including any Compounded
Interest that shall be payable, to the Holders of the Securities in whose names
the Securities are registered in the Security Register on the Regular Record
Date relating to such Payment Resumption Date. A Deferral Period shall terminate
upon the payment by the Company of all interest then accrued and unpaid on the
Securities (together with Additional Payments), to the extent permitted by
applicable law. Before the termination of any Deferral Period, the Company may
further extend such period as provided in paragraph (b) of this Section 3.13,
provided that such period together with all such further extensions thereof
shall not exceed 20 consecutive quarters or extend beyond (i) the maturity
(whether at August 1, 2030 or by declaration of acceleration, call for
redemption or otherwise) or (ii) in the case of a Deferral Period that begins
prior to the Reset Date, the Reset Date. Upon the termination of any Deferral
Period, and subject to the foregoing requirements, the Company may elect to
begin a new Deferral Period. No interest shall be due and payable during a
Deferral Period except on the Payment Resumption Date as determined pursuant to
paragraph (b) of this Section 3.13. There is no limitation on the number of
times that the Company may elect to begin a Deferral Period.
(b) The Company shall give the Holders of the Securities and the
Trustee written notice (a "Deferral Notice") of its selection of a Deferral
Period at least ten days prior to the record date for any distributions that
would have been payable on the Trust Securities except for the decision to begin
or extend a Deferral Period. On or prior to the Regular Record Date immediately
preceding the Interest Payment Date on which the Company elects to pay all
interest then accrued and unpaid on the Securities, including Compounded
Interest (the "Payment Resumption Date"), the Company shall give the Holder of
the Security and the Trustee written notice that the Deferral Period will end on
such Payment Resumption Date. Notwithstanding the provision of such notice, the
Company may elect to further extend the Deferral Period, subject to the
limitations set forth in Section 3.13(a), by providing the Holders of the
Securities and the Trustee with a new Deferral Notice not less than three
Business Days prior to the Regular Record Date immediately preceding the
previously scheduled Payment Resumption Date. The Company may elect to pay all
interest then accrued and unpaid on the Securities, including Compounded
Interest, on an Interest Payment Date prior to its most recently established
Payment Resumption Date; provided that the Company gives the Holders of the
Securities and the Trustee a new Deferral Notice setting forth the revised
Payment Resumption Date at least three Business Days prior to the Regular Record
Date for such revised Payment Resumption Date.
(c) The quarter in which any Deferral Notice is given pursuant to
paragraph (b) hereof shall be counted as one of the 20 quarters permitted in the
maximum Deferral Period permitted under paragraph (a) hereof.
SECTION 3.14 Paying Agent, Security Registrar and Conversion
Agent. The Trustee will initially act as Paying Agent, Security Registrar and
Conversion Agent. The Company may change any Paying Agent, Security Registrar,
co-registrar or
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Conversion Agent without prior notice. The Company or any of its Affiliates may
act in any such capacity.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of conversion, registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.07 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest (and Additional Payments, if any) to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
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(3) at the time of such deposit, no event has occurred under
Section 12.02 or 12.03; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest (and Additional Payments, if
any) for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 4.01 (and held by it or
any Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request. Money held by the Trustee under
this Section shall not be subject to the claims of the holders of Senior Debt
under Article XII.
ARTICLE V
Remedies
SECTION 5.01 Events of Default. "Event of Default," wherever
used herein, means any one of the following events that has occurred and is
continuing (whatever the reason for such Event of Default and whether it shall
be occasioned by the provisions of Article XII or be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security,
including any Additional Payments, when it becomes due and payable, and
continuance of such default for a period of 30 days (subject to the
deferral of any due date in the case of a Deferral Period); or
(2) default in the payment of the principal or premium, if any,
of any Security at its Maturity; or
(3) default in the observation or performance in any material
respect of any covenant of the Company in this Indenture (other than a
covenant a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), and continuance of
such default for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the
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Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate outstanding principal amount of the Securities a written
notice specifying such default and requiring it to be remedied; or
(4) failure by the Company to issue and deliver Common Stock
upon an election to convert the Securities into Common Stock; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any of its
Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of its
Significant Subsidiaries, as the case may be, under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or any of its
Significant Subsidiaries or of any substantial part of their property or
ordering the winding up or liquidation of their affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the institution by the Company or any of its Significant
Subsidiaries of proceedings to be adjudicated a bankrupt or insolvent,
or the consent by the Company or such Significant Subsidiary to the
institution of bankruptcy or insolvency proceedings against the Company
or such Significant Subsidiary, or the filing by the Company or such
Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or the
consent by the Company or such Significant Subsidiary to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or such Significant Subsidiary or of any substantial part of any
their respective property, or the making by any of them of an assignment
for the benefit of creditors, or the admission by any of them in writing
of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by the Company or any of its Significant Subsidiaries in
furtherance of any such action; or
(7) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution
of Securities to Holders of Preferred Securities in liquidation or
redemption of their interests in the Trust, (ii) the redemption of all
of the outstanding Preferred Securities of the Trust or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the
Declaration.
SECTION 5.02 Acceleration of Maturity: Rescission and
Annulment. If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Outstanding
Securities and any other amounts payable hereunder (including any Additional
Payments) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders); provided that, if the Property
Trustee is the sole Holder of the Securities and if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal
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amount of the Outstanding Securities fail to declare the principal of all the
Securities to be immediately due and payable, the Holders of at least 25% in
aggregate liquidation amount of Preferred Securities then outstanding shall have
such right by a notice in writing to the Company and the Trustee, and upon any
such declaration such principal and all accrued interest (and Additional
Payments, if any) shall become immediately due and payable. Upon the
effectiveness of any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Payments) on all
the Securities of such series shall then become immediately due and payable;
provided that the payment of principal and interest on, and all other
Obligations relating to, such Securities (including Additional Payments) shall
remain subordinated to the extent provided in Article XII.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in this Article hereinafter, the Holders of
a majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Property Trustee, the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest and Additional Payments on all
Securities,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and
interest (and Additional Payments, if any) thereon at the rate
borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
Should the Holders of the Securities fail to annul such
declaration and waive such default, the Holders of a majority in aggregate
liquidation amount of the Preferred Securities shall have such right.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
all or part of which are represented by a Global Security, a record date shall
be established for determining Holders of such Outstanding Securities entitled
to join in such notice, which
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record date shall be at the close of business on the day the Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, however, that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day which is 90 days after such record
date, such notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written notice
which has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions of
this Section 5.02.
SECTION 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest or any
Additional Payments on any Security when such interest or Additional
Payments become due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including any Additional Payments) and,
to the extent that payment thereof shall be legally enforceable, interest on any
overdue principal and on any overdue interest (including any Additional
Payments), at the rate borne by the Securities, and, in addition thereto, all
amounts owing to the Trustee under Section 6.07.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04 Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the
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making of such payments directly to the Holders, to pay to the Trustee any
amount due it, and any predecessor Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing to the Trustee and any
predecessor Trustee under Section 6.07, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06 Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest (including any
Additional Payments), upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
SECOND: Subject to Article XII, to the payment of the amounts
then due and unpaid for principal of and interest (including any
Additional Payments) on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest (including any
Additional Payments), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07 Limitation on Suits. Subject to Section 5.08, no
Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default, in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08 Unconditional Right of Holders to Receive
Principal and Interest and Convert. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and (subject to
Section 3.08) interest (including any Additional Payments) on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Security in accordance
with Article XIII and to institute suit for the enforcement of any such payment
and right to convert, and such rights shall not be impaired without the consent
of such Holder. If the Property Trustee is the sole Holder of the Securities,
any Holder of the Preferred Securities shall have the right to institute suit on
behalf of the Trust for the enforcement of any such payment and right to
convert.
SECTION 5.09 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Tights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.07, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee;
provided, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture; and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceedings so directed would involve it in personal
liability.
SECTION 5.13 Waiver of Past Defaults. Subject to Section 9.02
hereof, the Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or
interest (including any Additional Payments) on any Security (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest (and Additional Payments, if any) and principal
due otherwise than by acceleration has been deposited with the Trustee);
or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided m the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act
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shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee or in
any suit for the enforcement of the right to receive the principal of and
interest (and Additional Payments, if any) on any Security or to convert any
Security in accordance with Article XIII.
SECTION 5.15 Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.16 Enforcement by Holders of Preferred Securities.
Notwithstanding anything to the contrary contained herein, but subject to
Article XII, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest, Additional
Payments or principal on the Securities on the date such interest, Additional
Payments or principal is otherwise payable, the Company acknowledges that, in
such event, a Holder of Preferred Securities may institute a legal proceeding
directly for enforcement of payment to such Holder of the principal of, interest
or Additional Payments on the Securities having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such Holder (a
"Direct Action") on or after the due date specified or provided for in the
Securities. The Company may not amend this Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of all the
Holders of Preferred Securities. Notwithstanding any payment made to such Holder
of Preferred Securities by the Company in connection with a Direct Action, the
Company shall remain obligated to pay the principal of and interest (and
Additional Payments, if any) on the Securities held by the Trust or the Property
Trustee, and the Company shall be subrogated to the rights of the Holders of
such Preferred Securities with respect to payments on the Preferred Securities
to the extent of any payments made by the Company to such Holders in any Direct
Action. The Holders of Preferred Securities will not be able to exercise
directly any remedy available to the Holders of the Securities not provided for
in this Indenture.
ARTICLE VI
The Trustee
SECTION 6.01 Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
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(c) At the direction of the Remarketing Agent, the Trustee shall
(i) select the Primary Treasury Dealer to be a Reference Treasury Dealer and
(ii) determine the Reference Treasury Dealer Quotations, both in accordance with
the terms of the Remarketing Agreement. In addition, if the Securities are no
longer held by the Property Trustee, the Trustee shall act as Tender Agent in
accordance with the provisions of the Remarketing Agreement.
(d) Notwithstanding the foregoing, (i) the duties, immunities,
protections and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act and (ii) 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 fluids or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02 Notice of Defaults. The Trustee shall give the
Holders notice of any default hereunder as and to the extent provided by the
Trust Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(3), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03 Certain Rights of Trustee. Subject to the
provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
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(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its 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 reasonable examination
of the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without negligence
or willful misconduct, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 6.04 Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of the Securities or the proceeds thereof.
SECTION 6.05 May Hold Securities. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, or such other agent.
SECTION 6.06 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07 Compensation and Reimbursement. The Company
agrees:
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(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense,
including taxes (other than taxes based upon, measured by or determined
by the income of the Trustee) incurred without negligence or bad faith
on its part, 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 or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.07, except with respect to
funds held in trust of the benefit of the Holders of particular Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(5) or Section
5.01(6); 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 satisfaction
and discharge of this Indenture.
SECTION 6.08 Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. The Declaration and the Guarantee
shall be deemed to be specifically described in this Indenture for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 6.09 Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and has its corporate trust office
in New York, New York or Wilmington, Delaware. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its
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combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal: Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months; or
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
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the successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give written notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.06. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided, that on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments required to more fully and
certainly vest in and confirm to such successor Trustee all such rights, powers
and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided such
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(a) within 14 days after each record date for payment of
interest on the Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such
record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 14 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02 Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.03 Reports by Trustee. (a) Within 60 days after March
15 of each year, commencing March 15, 2001, the Trustee shall transmit by first-
class mail to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to Section 313(a) of the Trust
Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04 Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust
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Indenture Act at the times and in the manner provided pursuant to such Trust
Indenture Act; provided, that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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 7.05 Tax Reporting. The Company shall provide to the
Trustee on a timely basis such information as the Trustee requires to enable the
Trustee to prepare and file any form required to be submitted by the Company
with the Internal Revenue Service and the Holders relating to original issue
discount, including, without limitation, Form 1099-OID or any successor form.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person (other than a wholly owned Subsidiary of the Company),
and no Person shall consolidate with or merge with or into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company shall consolidate with or merge with or
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease, such properties and
assets substantially as an entirety shall be a corporation, limited
liability company, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and interest (including any Additional
Payments) on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Article XIII;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
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(3) if at the time any Preferred Securities are outstanding,
such consolidation or merger or conveyance, transfer or lease of assets
of the Company is permitted under, and does not give rise to any breach
or violation of, the Declaration or the Guarantee; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and with Article
IX and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.02 Successor Substituted. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of the Company's properties and assets
substantially as an entirety in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XIII; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; provided, that such action
pursuant to this clause (4) shall not materially adversely affect the
interests
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of the Holders of the Securities or, so long as any of the Preferred
Securities shall remain outstanding, the Holders of the Preferred
Securities; or
(5) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; or
(6) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Securities, and all other matters required pursuant
to Section 3.06(b) or otherwise necessary, desirable or appropriate in
connection with the issuance of Securities to Holders of Preferred
Securities in the event of a distribution of Securities by the Trust if
a Tax Event or Investment Company Event occurs and is continuing or
otherwise.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) extend the Stated Maturity of the principal of, or any
installment of interest (including any Additional Payments) on, any
Security, or reduce the principal amount thereof, or reduce the rate or
extend the time for payment of interest thereon, or reduce any premium
payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Security or interest or any
Additional Payments thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect the right to convert any Security
as provided in Article XIII (except as permitted by Section 9.01(3)), or
modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders,
(2) change the Reset Date,
(3) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver of certain defaults hereunder and their consequences provided
for in this Indenture, or
(4) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby.
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Notwithstanding anything to the contrary in this Indenture or
the Declaration, if the Property Trustee is the sole holder of the Securities,
so long as any of the Preferred Securities remains outstanding, no amendment
shall be made that adversely affects the Holders of such Preferred Securities,
and no termination of this Indenture shall occur, and no waiver of any Event of
Default shall be effective, without the prior consent of the Holders of the
percentage of the aggregate liquidation amount of such Preferred Securities then
outstanding which is at least equal to the percentage of aggregate principal
amount of Outstanding Securities as shall be required under this Indenture to
effect any such amendment, termination or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
SECTION 9.03 Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby. No such supplemental indenture shall directly or indirectly modify the
provisions of Article XII in any manner which might terminate or impair the
rights of the Senior Debt pursuant to such subordination provisions without the
consent of the holders thereby.
SECTION 9.05 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 9.06 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If
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the Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
ARTICLE X
Covenants; Representations and Warranties
SECTION 10.01 Payment of Principal and Interest. The Company
will duly and punctually pay the principal of, interest and Additional Payments,
if any, on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 10.02 Maintenance of Office or Agency; The Company will
maintain in New York City an office or agency where Securities may be presented
or surrendered for payment, where Securities may be surrendered for registration
of transfer, exchange or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided. however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the United States for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 10.03 Money for Security, Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or
before each due date of the principal of, interest or Additional Payments, if
any, on any of the Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal, interest or
Additional Payments, if any, so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of, interest or Additional
Payments, if any, on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal, interest or Additional Payments, if any, so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, interest
or Additional Payments, if any, on any Security and remaining unclaimed for two
years after such principal, interest or Additional Payments, if any, has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of any
such Security shall, subject to the relevant abandoned and unclaimed property
laws, thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 10.04 Statement by Officers as to Default. The Company
will deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default m the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 10.05 Limitation on Dividends; Transactions with
Affiliates Covenants as to the Trust. (a) If at such time (x) there shall have
occurred an Event of Default, (y) the Company shall be in default with respect
to its payment of any obligations under the Guarantee or (z) the Company shall
have given notice of its election to begin a Deferral Period as provided herein
and shall not have rescinded such notice, or such deferral period, or any
extension thereof, shall be continuing, the Company covenants that the Company
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock (which includes common and preferred stock) other than
stock dividends or distributions which consist of stock of the same class as
that on which the dividend or distribution is being paid, (ii) make any payment
of principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Company that rank pari passu with or junior interest
to the Securities or (iii) make any guarantee
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payments with respect to any guarantee by the Company of the debt securities of
any Subsidiary of the Company if such guarantee ranks pari passu with or junior
in interest to the Securities (in each case, other than (A) dividends or
distributions in Common Stock, (B) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (C) payments under the Guarantee or the Common
Securities Guarantee, (D) purchases or acquisitions of shares of Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or any other contractual obligation of the Company (other
than a contractual obligation ranking pari passu with or junior in interest to
the Securities), (E) the payment of fractional shares resulting from a result of
a reclassification of the Company's capital stock or the exchange or conversion
of one class or series of the Company's capital stock for another class or
series of the Company's capital stock or (F) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged).
(b) The Company also covenants and agrees (i) that it shall
directly or indirectly maintain 100% ownership of the Common Securities of the
Trust; provided, however, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities and (ii) that
it shall use its reasonable efforts, consistent with the terms and provisions of
the Declaration, to cause the Trust (x) to remain a statutory business trust,
except in connection with the distribution of the Securities to the holders of
Trust Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration, and (y) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes.
SECTION 10.06 Payment of Expenses of the Trust. In connection
with the issuance of the Securities to the Property Trustee in connection with
the sale of the Trust Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities, including commissions to
the Initial Purchasers payable pursuant to the Purchase Agreement and
compensation of the Trustee in accordance with the provisions of Section
6.07;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for
all costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including
commissions to the initial purchasers in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the
acquisition, financing, and disposition of Trust assets); and
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(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
SECTION 10.07 Registration Rights. The Holders of the Preferred
Securities, the Securities and the Guarantee and the shares of Common Stock
issuable upon conversion of the Securities (collectively, the "Registrable
Securities") are entitled to the benefits of a Registration Rights Agreement,
dated as of August 9, 2000, among the Company, the Trust and the Initial
Purchasers (the "Registration Rights Agreement"), including, without limitation,
the receipt of Additional Interest upon a Registration Default.
ARTICLE XI
Redemption of Securities
SECTION 11.01 Optional Redemption. (a) The Company shall have
the right to redeem the Securities (an "Optional Redemption") (i) in whole or in
part, at any time or from time to time, prior to the Reset Date but on or after
August 5, 2003 until (but excluding) the Tender Notification Date, at a
Redemption Price (the "Initial Redemption Price") equal to the prices per $50
principal amount of Securities set forth in the following table, plus accrued
and unpaid interest, including Additional Payments, if any, to the Redemption
Date, if redeemed during the 12-month period ending on August 5:
Price Per $50
Principal
Year Amount
---- -------------
2004 $50.6250
2005 $50.0000;
(ii) after the Reset Date (except in the event of a Failed Final Remarketing),
in accordance with the Term Call Protections, if any, established in the
Remarketing; and
(iii) in whole or in part, at any time on or after the third anniversary of the
Reset Date following a Failed Final Remarketing at a redemption price equal to
100% of the then outstanding aggregate principal amount of the Securities to be
redeemed, plus accrued and unpaid interest thereon (any Redemption Price so
established in the Remarketing or as a result of a Failed Final Remarketing, the
"Term Redemption Price", and, together with the Initial Redemption Price, an
"Optional Redemption Price"); provided, however, that the Company shall not be
permitted to redeem any Securities pursuant to this Section 11.01(a) during any
Deferral Period.
(b) If the Company desires to consummate an Optional Redemption,
it must cause to be sent, at its own expense, notice of such intent (an
"Optional Redemption Notice"), via first-class mail, postage prepaid, to each
Holder of Securities (and, if the Preferred Securities are still outstanding, to
each Holder of the corresponding Preferred
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Securities) to be redeemed, at such Holder's address appearing in the Security
Register and the List of Holders, if applicable, not less than 20 nor more than
60 days prior to the Optional Redemption Date, which Optional Redemption Notice
shall comply with Section 11.06 hereof. Holders receiving an Optional Redemption
Notice have the right, upon notification of the Trustee and the Conversion Agent
prior to the Optional Redemption Date, to convert their Securities called for
redemption into Common Stock at the Applicable Conversion Ratio on or prior to
the Optional Redemption Date in compliance with Article XIII hereof.
(c) In the case of any Optional Redemption, the Company must
notify the Trustee and the Property Trustee in writing of the Optional
Redemption Date, the principal amount of Securities to be redeemed and provide a
copy of the Optional Redemption Notice at least 60 days prior to sending the
Optional Redemption Notice, or such shorter period as agreed to by the Trustee
and Property Trustee in writing.
SECTION 11.02 [Reserved]
SECTION 11.03 Tax Event Redemption. (a) If a Tax Event has
occurred and is continuing and:
(1) the Company has received a Redemption Tax Opinion; or
(2) the Issuer Trustees shall have been informed by nationally
recognized independent tax counsel (reasonably acceptable to the Issuer
Trustees) experienced in such matters that a No Recognition Opinion
cannot be delivered,
then the Company shall have the right upon not less than 30 days nor more than
60 days notice to the Holders of the Securities to redeem the Securities in
whole, but not in part, for cash at $50 per $50 principal amount of the
Securities plus accrued and unpaid interest, including Additional Payments, if
any, to the Redemption Date, within 90 days following the occurrence and
continuation of such Tax Event (the "90 Day Period"); provided however, that if,
at the time there is available to the Company or the Trust the opportunity to
eliminate, within the 90 Day Period, the Tax Event by taking some ministerial
action, including, but not limited to, filing a form or making an election, or
pursuing some other similar reasonable measure which, in the sole judgment of
the Company, will have no adverse effect on the Company, the Trust or the
Holders of the Preferred Securities and will involve no material cost, then the
Company or the Trust shall pursue such ministerial action or other measure in
lieu of redemption; and provided further that the Company shall have no right to
redeem the Securities while the Trust is pursuing any ministerial action or
other similar measure pursuant to its obligations under the Declaration.
(b) In the event that the Company redeems the Securities
pursuant to Section 11.03(a), Holders shall have the right upon notification of
the Trustee and the Conversion Agent, to convert their Securities or Preferred
Securities, if applicable, into Common Stock at the Applicable Conversion Ratio
prior to 5:00 p.m., New York City time, on the applicable Redemption Date.
(c) If the Company opts not to redeem the Securities pursuant to
this Section 11.03, the Company shall be required to pay Additional Amounts in
respect of
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the Securities pursuant to Section 3.01 for so long as (i) a Tax Event, or such
other event pursuant to such Additional Amounts are payable, has occurred and is
continuing and (ii) the Property Trustee is the sole Holder of the Securities.
(d) In the case of a redemption pursuant to this Section, the
Company must notify the Trustee and the Property Trustee in writing of the
Redemption Date and provide a copy of the redemption notice at least 60 days
prior to the Redemption Date, or such shorter period as agreed to by the Trustee
and the Property Trustee in writing.
SECTION 11.04 Repayment at Stated Maturity. The Company shall
repay all of the Outstanding Securities, if any, on August 1, 2030, at a price
equal to the aggregate principal amount thereof, plus any accrued and unpaid
interest, including Additional Payments, if any, to the Stated Maturity.
SECTION 11.05 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee
pro rata or by lot or by such method as the Trustee shall deem fair or
appropriate, from the Outstanding Securities not previously called for
redemption. Such selection method may provide for the selection for redemption
of portions (equal to $50 or any integral multiple thereof) of the principal
amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be lass than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.06 Notice of Redemption. Notice of redemption (other
than with respect to a redemption which is an Optional Redemption) shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption (including, without limitation,
Optional Redemption Notices) given pursuant to this Article XI shall identify
the Securities to be redeemed (including, if relevant, CUSIP number) and shall
state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(4) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(5) the date on which the right to convert the Securities to be
redeemed will terminate and the places where such Securities may be
surrendered for conversion.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.07 Deposit of Redemption Price. Prior to 10:00 a.m.
New York City time on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest (together with
Additional Payments, if any) on, all the Securities which are to be redeemed on
that date.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.08) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.08 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest (including
Additional Payments, if any) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to the terms and the provisions of Section 3.08.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
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SECTION 11.09 Securities Redeemed in Part. (a) In the event of
any redemption in part, the Company shall not be required to (i) issue, register
the transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the date of mailing of a notice of redemption
of Securities selected for redemption and ending at the close of business on the
day of such mailing and (ii) register the transfer of or exchange any Securities
so selected for redemption, in whole or in part, except for the unredeemed
portion of any Securities being redeemed in part.
(b) If a partial redemption of the Securities would result in
the delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(c) Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is surrendered, such new
Security will (subject to Section 3.06) also be a new Global Security.
ARTICLE XII
Subordination of Securities
SECTION 12.01 Agreement to Subordinate. The Company covenants
and agrees, and each Holder of Securities by such Holder's acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article XII; and each Holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions. The payment by the Company of the principal of,
premium, if any, interest (including Additional Payments, if any) and other
Obligations with respect to all Securities issued hereunder shall, to the extent
and in the manner hereinafter set forth, be subordinated and junior in right of
payment to the prior payment in full in cash of principal of (and premium, if
any), interest and all other Obligations with respect to all Senior Debt,
whether outstanding at the date of this Indenture or thereafter incurred;
provide provided, however. that no provision of this Article XII shall prevent
the occurrence of any default or Event of Default hereunder.
SECTION 12.02 Default on Senior Debt. In the event and during
the continuation of any default by the Company in the payment of principal,
premium, if any, interest on or any other Obligation relating to, any Senior
Debt when the same becomes due and payable (a "payment default"), whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, and such default continues beyond the period of grace, if any,
specified in the instrument evidencing such Senior Debt, then unless and until
such default shall have been cured or waived or shall have
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ceased to exist or all Senior Debt and all Obligations relating thereto have
been paid in full in cash, and in the event that the maturity of any Senior Debt
has been accelerated because of a default, then no direct or indirect payment or
distribution (in cash, property, securities, by set-off or otherwise) shall be
made or agreed to be made with respect to the principal of (including redemption
payments), premium, if any, or interest on, or any other Obligation relating to,
the Securities or in respect of any redemption, repayment, retirement, purchase
or other acquisition of any of the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 12.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to the holders of Senior
Debt, or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, but only to the extent that the holders
of the Senior Debt (or their representative or representatives or a trustee)
notify the Trustee in writing within 180 days of such payment of the amounts
then due and owing to the holders of such Senior Debt and only the amounts
specified in such notice to the Trustee shall be paid to the holders of such
Senior Debt.
SECTION 12.03 Liquidation; Dissolution; Bankruptcy. Upon any
direct or indirect payment by or on behalf of the Company or direct or indirect
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, by set-off or otherwise, to creditors upon any
dissolution or winding up or liquidation or reorganization of the Company or
assignment for the benefit of creditors or marshaling of assets, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all amounts (including principal, premium, if any, and interest)
due or to become due upon all Senior Debt shall first be paid in full in cash,
or such payment thereof provided for in money in accordance with its terms,
before any payment or distribution is made on account of the principal (and
premium, if any), interest or any other Obligation relating to the Securities;
and upon any such dissolution or winding up or liquidation or reorganization,
any direct or indirect payment by the Company, or direct or indirect payment or
distribution (in cash, property, securities, by set-off or otherwise) to which
the Holders of the Securities or the Trustee would be enti tled, except for the
provisions of this Article XII, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders of the Securities or by the Trustee
under this Indenture if received by them or it, directly to the holders of
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Senior Debt held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay such Senior Debt in full, in cash, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt, before any
such payment or distribution is made to the Holders of Securities or to the
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, by set-off or otherwise, prohibited by the foregoing,
shall be received by the Trustee or the Holders of the Securities before all
Senior Debt is paid in full in cash, or provision is made for such payment in
cash in accordance with its terms, such payment or
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distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Debt or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Debt may have been issued, and
their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Debt remaining unpaid to the extent
necessary to pay such Senior Debt in full in cash in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Debt.
For purposes of this Article XII, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XII with respect
to the Securities to the payment of all Senior Debt which may at the time be
outstanding; provided, that (i) such Senior Debt is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Debt are not, without the consent
of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company with or into,
another Person or the liquidation or dissolution of the Company following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety to another Person upon the terms and conditions provided for in Article
VIII hereof shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 12.03 if such other Person
shall, as a part of such consolidation, merger, conveyance, transfer or lease,
comply with the conditions stated in Article VIII hereof. Nothing in Section
12.02 or in this Section 12.03 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07 hereof.
SECTION 12.04 Subrogation. Subject to the payment in full in
cash of all Senior Debt, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of such Senior Debt to receive payments
or distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such Senior
Debt of any cash, property or securities to which the Holders of the Securities
or the Trustee would be entitled except for the provisions of this Article XII,
and no payment over pursuant to the provisions of this Article XII, to or for
the benefit of the holders of such Senior Debt by Holders of the Securities or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Debt. It is understood that the
provisions of this Article XII are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of such Senior Debt on the other hand.
Nothing contained in this Article XII or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Debt, and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including Additional Payments, if any) on the
Securities as and when the same shall become due and payable in accordance with
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their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company, as the case may be,
other than the holders of Senior Debt, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XII of the holders of such Senior Debt
in respect of cash, property or securities of the Company, as the case may be,
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article XII, the Trustee, subject to the provisions of
Section 6.03, and the Holders of the Securities, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of the
Senior Debt and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XII; provided
that such court, trustee, receiver, agent or other Person has been apprised of,
or the order, decree or certificate makes reference to, the provisions of this
Article.
SECTION 12.05 Trustee to Effectuate Subordination. Each Holder
of Securities by such Holder's acceptance thereof authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee as such Holder's attorney-in-fact for any and all such
purposes.
SECTION 12.06 Notice by the Company. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article XII. Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article XII, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust Office
of the Trustee from the Company or a holder or holders of Senior Debt or from
any trustee therefor or representative thereof; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 6.03
hereof, shall be entitled in all respects to assume that no such facts exist;
provided, however that if the Trustee shall not have received the notice
provided for in this Section 12.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
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The Trustee, subject to the provisions of Section 6.03, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee or
representative on behalf of such holder) to establish that such notice has been
given by a holder of such Senior Debt or a trustee or representative on behalf
of any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
right of such Person under this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment or
distribution.
SECTION 12.07 Rights of the Trustee; Holders of Senior Debt. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article XII in respect of any Senior Debt at any time held by it, to the
same extent as any other holder of Senior Debt, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are setforth in this Article XII, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Debt and, subject to the provisions
of Section 6.03, the Trustee shall not be liable to any holder of such Senior
Debt if it shall pay over or deliver to Holders of Securities, the Company or
any other Person money or assets to which any holder of such Senior Debt shall
be entitled by virtue of this Article XII or otherwise.
SECTION 12.08 Subordination May Not Be Impaired. (a) No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
(b) 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 notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Debt, or otherwise amend or supplement in any manner such Senior
Debt or any instrument evidencing the same or any agreement under which such
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Debt; (iii)
release any Person liable in any
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manner for the collection of such Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
(c) The subordination provisions of this Article XII shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Senior Debt is, pursuant to applicable law,
avoided, recovered, or rescinded or must otherwise be restored or returned by
any holder of Senior Debt, whether as a "voidable preference," "fraudulent
conveyance," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made.
(d) If, upon any proceeding referred to in Section 12.03, the
Trustee does not file a claim in such proceeding prior to fifteen Business Days
before the expiration of the time to file such claim, the holders of Senior Debt
or their agent may file such claim on behalf of the Holders of the Securities.
(e) The subordination provisions contained herein are solely for
the benefit of the holders from time to time of Senior Debt and their
representatives, assignees and beneficiaries and may not be rescinded, canceled,
amended or modified in any way other than, as to any holder of Senior Debt,
pursuant to an amendment or modification that is permitted by the documentation
relating to the Senior Debt applicable to such holder.
ARTICLE XIII
Conversion of Securities
SECTION 13.01 Conversion Rights. Subject to and upon compliance
with the provisions of this Article, the Securities are convertible, at the
option of the Holder, at any time prior to 5:00 p.m. New York City time, on or
prior to the Tender Notification Date and, in the event of either a Convertible
Remarketing which does not fail or a Failed Final Remarketing, on and after the
Reset Date through August 1, 2030 (except that Securities called for redemption
by the Company shall be convertible at any time prior to 5:00 p.m. New York City
time, on any Redemption Date), into fully paid and nonassessable shares of
Common Stock of the Company. On or prior to the Tender Notification Date, each
Security is convertible at the option of the Holder into 0.5755 shares of Common
Stock for each $50 in aggregate principal amount of Securities (the "Initial
Conversion Ratio") (equal to a conversion price of $86.875 principal amount of
Securities per share of Common Stock (the "Initial Conversion Price")). On and
after the Reset Date, the Securities may, at the option of the Company and
subject to the results of the Remarketing, become nonconvertible or convertible
into a different number of shares of Common Stock, as determined by the
Remarketing Agent in accordance with the terms of the Remarketing Agreement. The
conversion ratio and the equivalent conversion price in effect at any given time
are known as the "Applicable Conversion Ratio" and the "Applicable Conversion
Price", respectively, and are subject to adjustment as described in this Article
XIII A Holder of Securities may convert any portion of the principal amount of
the Securities into that number of fully paid and nonassessable shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a share)
obtained by dividing the principal amount of the Securities to be converted by
the Applicable Conversion Price. In case a Security or portion thereof is called
for redemption, such conversion right in respect of the Security or portion so
called shall
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expire at the close of business on the corresponding Redemption Date, unless the
Company defaults in making the payment due upon redemption.
SECTION 13.02 Conversion Procedures. (a) In order to convert all
or a portion of the Securities, the Holder thereof shall deliver to the
Conversion Agent an irrevocable Notice of Conversion setting forth the principal
amount of Securities to be converted, together with the name or names, if other
than the Holder, in which the shares of Common Stock should be issued upon
conversion and, if such Securities are definitive Securities, surrender to the
Conversion Agent the Securities to be converted, duly endorsed or assigned to
the Company or in blank. In addition, a Holder of Preferred Securities may
exercise its right under the Declaration to convert such Preferred Securities
into Common Stock by delivering to the Conversion Agent an irrevocable Notice of
Conversion setting forth the information called for by the preceding sentence
and directing the Conversion Agent (i) to exchange such Preferred Security for
a portion of the Securities held by the Trust (at an exchange rate of $50
principal amount of Securities for each Preferred Security) and (ii) to
immediately convert such Securities, on behalf of such Holder, into Common Stock
of the Company pursuant to this Article XIII and, if such Preferred Securities
are in definitive form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities are
outstanding, the Trust shall not convert any Securities except pursuant to a
Notice of Conversion duly executed and delivered to the Conversion Agent by a
Holder of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder will
be entitled to receive the interest payable on the subsequent Interest Payment
Date on the portion of Securities to be converted notwithstanding the conversion
thereof prior to such Interest Payment Date (other than any Security whose
Maturity is prior to such Interest Payment Date). Except as otherwise provided
in the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable, and the Company shall not make nor be
required to make any other payment, adjustment or allowance with respect to
accrued but unpaid interest on the Securities being converted, which shall be
deemed to be paid in full. Each conversion shall be deemed to have been effected
immediately prior to the close of business on the day on which the Notice of
Conversion was received (the "Conversion Date") by the Conversion Agent from the
Holder or from a Holder of the Preferred Securities effecting a conversion
thereof pursuant to its conversion rights under the Declaration, as the case may
be. The Person or Persons entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Notice of Conversion, a certificate or certificates for the number of
full shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) Subject to the right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 3.08 and the second paragraph of clause (a) of Section 13.02, the
Company's delivery upon conversion
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of the whole number of shares of Common Stock into which the Securities are
convertible (together with the cash payment, if any, in lieu of fractional
shares) shall be deemed to satisfy the Company's obligation to pay the principal
amount at Maturity of the portion of Securities so converted and any unpaid
interest (including Additional Payments) accrued on such Securities at the time
of such conversion.
(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Securities or Preferred Securities, as the case may be, were duly surrendered to
the Conversion Agent for conversion, or, if such day is not a Trading Day, on
the next Trading Day, and the Conversion Agent in turn will make such payment,
if any, to the Holder of the Securities or the Holder of the Preferred
Securities so converted.
(d) In the event of the conversion of any Security in part only,
a new Security or Securities for the unconverted portion thereof will be issued
in the name of the Holder thereof upon the cancellation thereof in accordance
with Section 3.10.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the Holders of Preferred
Securities (in the exchange of Preferred Securities for Securities) and as agent
of the Holders of Securities (in the conversion of Securities into Common
Stock), as the case may be, directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized (x) if the Trust exists, (i) to
exchange Securities held by or on behalf of the Trust from time to time for
Preferred Securities in connection with the conversion of such Preferred
Securities in accordance with this Article XIII and (ii) to convert all or a
portion of the Securities into Common Stock and thereupon to deliver such shares
of Common Stock in accordance with the provisions of this Article XIII and to
deliver to the Trust a new Security or Securities for any resulting unconverted
principal amount and (y) if the Trust no longer exists (i) to exchange
Securities held by the Holders in connection with the conversion of such
Securities in accordance with this Article XIII and (ii) to convert all or a
portion of the Securities into Common Stock and thereupon to deliver such shares
of Common Stock in accordance with the provisions of this Article XIII and to
deliver to such Holders a new Security or Securities for any resulting
unconverted principal amount.
(f) All shares of Common Stock delivered upon any conversion of
Restricted Securities shall bear a restrictive legend substantially in the form
of the legend required to be set forth on such Securities and shall be subject
to the restrictions on transfer provided in such legend and in Section 3.06(b)
hereof. Neither the Trustee nor the Conversion Agent shall have any
responsibility for the inclusion or content of any such restrictive legend on
such Common Stock; provided, however, that the Trustee or the Conversion Agent
shall have provided to the Company or to the Company's transfer agent for such
Common Stock, prior to or concurrently with a request to the Company to deliver
to such Conversion Agent certificates for such Common Stock, written notice that
the Securities delivered for conversion are Restricted Securities.
SECTION 13.03 Conversion Price Adjustments. The Applicable
Conversion Price shall be subject to adjustment (without duplication) from time
to time as follows:
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(i) In case the Company shall pay a dividend or make a distribution on
the Common Stock exclusively in Common Stock, the Applicable Conversion Price in
effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Applicable Conversion Price by
a fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
subparagraph (i), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. In the event that
such dividend or distribution is not so paid or made, the Applicable Conversion
Price shall again be adjusted to be the Applicable Conversion Price which would
then be in effect if such dividend or distribution had not occurred.
(ii) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights or warrants, in each case
entitling the holders thereof to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per share
(determined as provided in subparagraph (vii)) of the Common Stock on the date
fixed for the determination of stockholders entitled to receive such rights or
warrants, the Applicable Conversion Price in effect at the opening of business
on the day following the date fixed for such determination shall be reduced by
multiplying such Applicable Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. To the extent that rights are not so issued or shares of Common
Stock are not so delivered after the expiration of such rights or warrants,
the Applicable Conversion Price shall be readjusted to the Applicable Conversion
Price which would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. For
the purposes of this subparagraph (ii), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company.
(iii) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Applicable Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a
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smaller number of shares of Common Stock, the Applicable Conversion Price in
effect at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(iv) Subject to the last sentence of this subparagraph (iv), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class or series of capital
stock, cash or assets (including securities, but excluding any rights or
warrants referred to in subparagraph (ii) of this Section 13.03, any dividend or
distribution paid exclusively in cash and any dividend or distribution referred
to in subparagraph (i) of this Section 13.03), the Applicable Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Applicable Conversion Price in effect immediately prior to the
effectiveness of the Applicable Conversion Price reduction contemplated by this
subparagraph (iv) by a fraction of which the numerator shall be the current
market price per share (determined as provided in subparagraph (vii) of this
Section 13.03) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such distribution (the "Reference Date") less
the fair market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors), on the Reference Date, of the portion of the evidences of
indebtedness, shares of capital stock, cash and assets so distributed applicable
to one share of Common Stock and the denominator shall be such current market
price per share of the Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the Reference
Date. In the event that such dividend or distribution is not so paid or made,
the Applicable Conversion Price shall again be adjusted to be the Applicable
Conversion Price which would then be in effect if such dividend or distribution
had not occurred. For purposes of this subparagraph (iv), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Common Stock or such
rights or warrants (making any Applicable Conversion Price reduction required by
this subparagraph (iv)) immediately followed by (2) a dividend or distribution
of such shares of Common Stock or such rights or warrants (making any further
Applicable Conversion Price reduction required by subparagraph (i) or (ii) of
this Section 13.03), except any shares of Common Stock included in such dividend
or distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of subparagraph (i) of
this Section 13.03.
(v) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding (x) cash
dividends that do not exceed the per share amount of the smallest of the
immediately four preceding quarterly cash dividends (as adjusted to
appropriately reflect any of the events referred to in subparagraphs (i), (ii),
(iii), (iv), (v) and (vi)), and (y) cash dividends, the per share amount of
which, together with the
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aggregate per share amount of any other cash dividends paid within the 12 months
preceding the date of payment of such cash dividends, does not exceed 12.5% of
the current market price per share (determined as provided in subparagraph (vii)
of this Section 13.03) of the Common Stock on the Trading Day next preceding the
date of declaration of such dividend, the Applicable Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Applicable Conversion Price in effect immediately prior to the effectiveness of
the Applicable Conversion Price reduction contemplated by this subparagraph (v)
by a fraction of which the numerator shall be the current market price per share
(determined as provided in subparagraph (vii) of this Section 13.03) of the
Common Stock on the date fixed for the payment of such distribution less the
amount of cash so distributed and not excluded as provided applicable to one
share of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such reduction to become effective immediately prior
to the opening of business on the day following the date fixed for the payment
of such distribution; provided however, that in the event the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than the current market price per share (as defined in subparagraph
(vii) of this Section 13.03) of the Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities shall have the right to receive upon conversion
the amount of cash such Holder would have received had such Holder converted
each Security immediately prior to the record date for the distribution of the
cash. In the event that such dividend or distribution is not so paid or made,
the Applicable Conversion Price shall again be adjusted to be the Applicable
Conversion Price which would then be in effect if such record date had not been
fixed.
(vi) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Company's Common Stock shall expire and such tender or exchange offer shall
involve the payment by the Company or such Subsidiary of consideration per share
of Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it shall have been amended) that exceeds 110% of the current market price per
share (determined as provided in subparagraph (vii) of this Section 13.03) of
the Common Stock on the Trading Day next succeeding the Expiration Time, the
Applicable Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Applicable Conversion Price in effect
immediately prior to the effectiveness of the Applicable Conversion Price
reduction contemplated by this subparagraph (vi) by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) at the Expiration Time multiplied by the
current market price per share (determined as provided in subparagraph (vii) of
this Section 13.03) of the Common Stock on the Trading Day next succeeding the
Expiration Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn
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as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the current market price per share (determined as provided
in subparagraph (vii) of this Section 13.03) 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.
(vii) For the purpose of any computation under subparagraphs (ii), (iv),
(v) and (vi) of this Section 13.03, the current market price per share of Common
Stock on any date in question shall be deemed to be the average of the daily
Closing Prices for the ten consecutive Trading Days prior to the earlier of the
day in question and, if applicable, the day before the "ex" date (as hereinafter
defined) with respect to the issuance or distribution requiring such
computation; provided, however, that if the day in question or the "ex" date for
any event (other than the issuance or distribution requiring such computation)
that requires an adjustment to the Applicable Conversion Price pursuant to
Section 13.03 (ii), (iv), (v) or (vi) occurs during such 10 consecutive Trading
Days, the Closing Price for each Trading Day prior to such date for such other
event shall be adjusted by multiplying such Closing Price by the same fraction
by which the Applicable Conversion Price is so required to be adjusted as a
result of such other event. For purposes of this subparagraph (vii), the term
"ex" date (I) when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant exchange
or in the relevant market from which the Closing Price was obtained without the
right to receive such issuance or distribution, (II) 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
(III) 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 offer. Notwithstanding the foregoing,
whenever successive adjustments to the Applicable Conversion Price are called
for pursuant to this Section 13.03, such adjustments shall be made to the
current market price as may be necessary or appropriate to effectuate the intent
of this Section 13.03 and to avoid unjust or inequitable results, as determined
in good faith by the Board of Directors.
(viii) The Company may make such reductions in the Applicable Conversion
Price, in addition to those required by subparagraphs (i), (ii), (iii), (iv),
(v) and (vi), as its Board of Directors considers to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common
Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.
(ix) No adjustment of the Applicable Conversion Price shall be made upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts in
shares of Common Stock or options or rights to purchase such shares pursuant to
any
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present or future employee, director or consultant benefit plan or
program of the Company or pursuant to any option, warrant, right, or
exercisable, exchangeable or convertible security outstanding as of the
date the Securities were first issued. There shall also be no adjustment
of the Applicable Conversion Price in case of the issuance of any Common
Stock (or securities convertible into or exchangeable for Common Stock),
except as specifically described above. Furthermore, no adjustment in
the Applicable Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Applicable
Conversion Price; provide, however, that any adjustments which by
reason of this subparagraph (ix) are not required to be made shall be
carried forward and taken into account in determining whether any
subsequent adjustment shall be required.
SECTION 13.04 Reclassification, Consolidation, Merger or Sale of
Assets. In the event that the Company shall be a party to any transaction
(including without limitation (a) any recapitalization or reclassification of
the Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock), (b) any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another Person into
the Company (other than a merger which does not result in a reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company), (c) any sale or transfer of all or substantially all of the assets
of the Company or (d) any compulsory share exchange) (each of the events in the
preceding clauses (a) through (d) being referred to as a "Company Transaction"),
in each case, as a result of which shares of Common Stock shall be converted
into the right to receive other securities, cash or other property, then the
Company or the Person formed by such consolidation or resulting from such merger
or which acquired such assets or which acquires the Company's shares, as the
case may be, shall execute with the Trustee a supplemental indenture providing
that the Holder of each Security then outstanding shall have the right
thereafter to convert such Security only into (i) in the case of any such
transaction other than a Common Stock Fundamental Change, the kind and amount of
securities, cash and other property receivable upon consummation of such Company
Transaction by a holder of the number of shares of Common Stock of the Company
into which such Security could have been converted immediately prior to such
Company Transaction, after giving effect to any adjustment in the Applicable
Conversion Price required by the provision of Section 13.07(a)(i), and (ii) in
the case of a Company Transaction involving a Common Stock Fundamental Change,
common stock of the kind received by holders of Common Stock as a result of such
Common Stock Fundamental Change in an amount determined pursuant to the
provisions of Section 13.07(a)(ii). Holders of the Securities shall have no
voting rights with respect to any Company Transaction described in this Section
13.04.
Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XIII. The above provisions shall similarly apply to
successive transactions of the foregoing type.
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SECTION 13.05 Notice of Adjustments of Conversion Price.
Whenever the Applicable Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Applicable Conversion
Price and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted Applicable Conversion
Price and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee, the
Conversion Agent and the transfer agent for the Preferred Securities and the
Securities; and
(b) a notice stating that the Applicable Conversion Price has
been adjusted and setting forth the adjusted Applicable Conversion Price shall
as soon as practicable be mailed by the Company to all record Holders of
Preferred Securities and the Securities at their last addresses as they appear
upon the stock transfer books of the Company and the books and records of the
Trust, respectively.
SECTION 13.06 Prior Notice of Certain Events. In case:
(i) the Company shall (1) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 13.03(iv) or (v) or (2)
authorize a tender or exchange offer that would require an adjustment
pursuant to Section 13.03(vi);
(ii) the Company shall authorize the granting to all holders of
Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or
warrants;
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company shall be
required, or of the sale or transfer of all or substantially all of the
assets of the Company or of any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or other property;
or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall (a) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the Holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the books and records of the Trust or (b) if
no Preferred Securities are outstanding, shall cause to be mailed to all Holders
at their last addresses as they shall appear in the Security Register, at least
fifteen days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution, rights or warrants or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined or (y) the date on which
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such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no failure
to mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice).
SECTION 13.07 Adjustments in Case of Fundamental Changes. (a)
Notwithstanding any other provision in this Article XIII to the contrary, in the
case of any Company Transaction involving a Fundamental Change, then the
Applicable Conversion Price will be adjusted immediately after such Fundamental
Change as follows:
(i) in the case of a Non-Stock Fundamental Change, the Applicable
Conversion Price of the Securities shall thereupon become the lower of
(A) the Applicable Conversion Price immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant to this Article XIII, and (B) the result
obtained by multiplying the greater of the Relevant Price or the then
applicable Reference Market Price by a fraction of which the numerator
shall be $50 and the denominator shall be the then-current Optional
Redemption Price or, on or prior to the Reset Date and at any time after
the Reset Date at which the Securities are not redeemable at the option
of the Company, an amount per Security determined by the Company in its
sole discretion, after consultation with an investment banking firm, to
be the equivalent of the hypothetical Redemption Price that would have
been applicable if the Securities had been redeemable during such period
(such fraction shall hereinafter be referred to as the "Optional
Redemption Ratio") (such product shall hereinafter be referred to as the
"Adjusted Relevant Price" or the "Adjusted Reference Market Price", as
the case may be); and
(ii) in the case of a Common Stock Fundamental Change, the
Applicable Conversion Price of the Securities in effect immediately
prior to such Common Stock Fundamental Change, but after giving effect
to any other prior adjustments effected pursuant to this Article XIII,
shall thereupon be adjusted by multiplying such Applicable Conversion
Price by a fraction of which the numerator shall be the Purchaser Stock
Price and the denominator shall be the Relevant Price; provided,
however, that in the event of a Common Stock Fundamental Change in which
(A) 100% of the value of the consideration received by a holder of
Common Stock is common stock of the successor, acquiror or other third
party (and cash, if any, is paid only with respect to any fractional
interests in such common stock resulting from such Common Stock
Fundamental Change) and (B) all of the Common Stock shall have been
exchanged for, converted into or acquired for common stock (and cash
with respect to fractional interests) of the successor, acquiror or
other third party, the Applicable Conversion Price of the Securities in
effect immediately prior to such Common Stock Fundamental Change shall
thereupon be adjusted by multiplying such Applicable Conversion Price by
a fraction of which the numerator shall be one and the denominator shall
be the number of shares of common stock of the successor, acquiror, or
other third
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party received by a stockholder for one share of Common Stock as a
result of such Common Stock Fundamental Change.
(b) Definitions. The following definitions shall apply to terms
used in this Article XIII:
(1) "Closing Price" of any security on any day shall mean on any
day the last reported sale price of such security on such day, or in
case no sale takes place on such day, the average of the closing bid and
asked prices in each case on the principal national securities exchange
on which such securities are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on
the NNM or, if such securities are not listed or admitted to trading on
any national securities exchange or quoted on the NNM, the average of
the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected by the
Company for such purpose.
(2) "Common Stock Fundamental Change" shall mean any Fundamental
Change in which more than 50% of the value (as determined in good faith
by the Board of Directors) of the consideration received by holders of
Common Stock consists of common stock that for each of the ten
consecutive Trading Days immediately prior to and including the
Entitlement Date has been admitted for listing or admitted for listing
subject to notice of issuance on a national securities exchange or
quoted on the NNM, provided, however, that a Fundamental Change shall
not be a Common Stock Fundamental Change unless either:
(A) the Company continues to exist after the occurrence of the
Fundamental Change and the Outstanding Preferred Securities
continue to remain Outstanding without having been converted
into another security; or
(B) not later than the occurrence of the Fundamental Change, the
Outstanding Securities are converted into or exchanged for
debentures of a corporation succeeding to the business of the
Company, which debentures have terms substantially similar to
the Securities.
(3) "Entitlement Date" shall mean the record date for
determination of the holders of Common Stock entitled to receive
securities, cash or other property in connection with a Non-Stock
Fundamental Change or a Common Stock Fundamental Change or, if there is
no such record date, the date upon which holders of Common Stock shall
have the right to receive such securities, cash or other property.
(4) "Fundamental Change" shall mean the occurrence of any
transaction or event in connection with a Company Transaction pursuant
to which all or substantially all of the Common Stock shall be exchanged
for, converted into, acquired for or constitute solely the right to
receive securities, cash or other property (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise); provided,
however, in the case of a Company Transaction involving
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more than one such transaction or event, for purposes of adjustment of the
Applicable Conversion Price, such Fundamental Change shall be deemed to have
occurred when substantially all of the Common Stock of the Company shall be
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash or other property, but the adjustment shall be based
upon the highest weighted average of consideration per share that a holder of
Common Stock could have received in such transactions or events as a result of
which more than 50% of the Common Stock of the Company shall have been exchanged
for, converted into, or acquired for or constitute solely the right to receive
securities, cash or other property.
(5) "Non-Stock Fundamental Change" shall mean any Fundamental Change
other than a Common Stock Fundamental Change.
(6) "Purchaser Stock Price" shall mean, with respect to any Common Stock
Fundamental Change, the average of the daily Closing Prices of the common stock
received in such Common Stock Fundamental Change for the (10) ten consecutive
Trading Days prior to and including the Entitlement Date, as adjusted in good
faith by the Board of Directors to appropriately reflect any of the events
referred to in subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of Section
13.03.
(7) "Reference Market Price" shall initially mean on the date of
original issuance of the Securities, $46.3125 (which is an amount derived from
the product of 66 2/3% times the last reported sale price for the Common Stock
on the New York Stock Exchange Composite Tape on August 3, 2000, rounded to the
nearest one-sixteenth) and, in the event of any adjustment to the Applicable
Conversion Price from such date to (but excluding) the Reset Date, other than as
a result of a Non-Stock Fundamental Change, the Reference Market Price shall
also be adjusted so that the ratio of the Reference Market Price to the
Applicable Conversion Price after giving effect to any such adjustment shall
always be the same as the ratio of $46.3125 to the Initial Conversion Price. If
the Securities are convertible into Common Stock on and after the Reset Date,
the Reference Market Price on such date will be an amount equal to the product
of 66 2/3% times the Closing Price of the Common Stock on the Reset Date (such
product rounded to the nearest one-sixteenth) and, in the event of any
adjustment to the Applicable Conversion Price from the Reset Date and
thereafter, other than as a result of a Non-Stock Fundamental Change, the
Reference Market Price shall also be adjusted so that the ratio of the Reference
Market Price to the Applicable Conversion Price after giving effect to any
such adjustment shall always be the same as the ratio of the Closing Price of
the Common Stock on the Reset Date to the Term Conversion Price.
(8) "Relevant Price" shall mean (i) in the event of a Non-Stock
Fundamental Change in which the holders of the Common Stock receive only cash,
the amount of cash received by a stockholder for one share of Common Stock and
(ii) in the event of any other Non-Stock Fundamental Change or any Common Stock
Fundamental Change, the average of the daily Closing Prices of the Common Stock
for the ten consecutive Trading Days prior to and including the Entitlement
Date, in each case, as adjusted in good faith by the Company to
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appropriately reflect any of the events referred to in subparagraphs
(i), (ii), (iii), (iv), (v) and (vi) of Section 13.03.
(9) "Trading Day" shall mean a day on which securities are
traded on the national securities exchange or quotation system used to
determine the Closing Price.
SECTION 13.08 Dividend or Interest Reinvestment Plans. (a)
Notwithstanding the foregoing provisions, the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Common Stock under any such plan, and
the issuance of any shares of Common Stock or options or rights to purchase such
shares pursuant to any employee benefit plan or program of the Company or
pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the date the Securities were first
issued, shall not be deemed to constitute an issuance of Common Stock or
exercisable, exchangeable or convertible securities by the Company to which any
of the adjustment provisions described above applies.
(b) There shall also be no adjustment of the Applicable
Conversion Price in case of the issuance of any stock (or securities convertible
into or exchangeable for stock) of the Company except as specifically described
in this Article XIII.
SECTION 13.09 Certain Additional Rights. Notwithstanding any
other provision of this Article XIII to the contrary, rights, warrants,
evidences of indebtedness, other securities, cash or other assets (including,
without limitation, any rights distributed pursuant to any stockholder rights
plan) shall be deemed not to have been distributed for purposes of this Article
XIII if the Company makes proper provision so that each Holder who converts a
Security (or any portion thereof) after the date fixed for determination of
stockholders entitled to receive such distribution shall be entitled to receive
upon such conversion, in addition to the shares of Common Stock issuable upon
such conversion, the amount and kind of such distributions that such Holder
would have been entitled to receive if such Holder had, immediately prior to
such determination date, converted such Security into Common Stock.
SECTION 13.10 Restrictions on Common Stock Issuable Upon
Conversion. (a) Shares of Common Stock to be issued upon conversion of a
Security in respect of Restricted Preferred Securities (as defined in the
Declaration) shall bear such restrictive legends as the Company may provide in
accordance with applicable law.
(b) If shares of Common Stock to be issued upon conversion of a
Security in respect of Restricted Preferred Securities are to be registered in a
name other than that of the Holder of such Preferred Security, then the Person
in whose name such shares of Common Stock are to be registered must deliver to
the Conversion Agent a certificate satisfactory to the Company and signed by
such Person, as to compliance with the restrictions on transfer applicable to
such Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of the Holder
shares of Common Stock or such Preferred Securities issued upon conversion of
any such Security in respect of such Preferred Securities not so accompanied by
a properly completed certificate.
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SECTION 13.11 Trustee Not Responsible for Determining Con-
version Price or Adjustments. Neither the Trustee nor any Conversion Agent shall
at any time be under any duty or responsibility to any Holder of any Security to
determine whether any facts exist which may require any adjustment of the
Applicable Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock or of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Security; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion, or, except as expressly herein provided,
to comply with any of the covenants of the Company contained in Article X or
this Article XIII.
[Signature page follows.]
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This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the day and year first above written.
CALPINE CORPORATION
By: /s/ XXX X. XXXXXX
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
WILMINGTON TRUST COMPANY, as
Trustee
By:
----------------------------------
Name:
Title:
82
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the day and year first above written.
CALPINE CORPORATION
By:
----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as
Trustee
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signer
83
EXHIBIT A
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[Include if a Global Security: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE
DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR A SECURITY REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX) TO CALPINE CORPORATION OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
[Include Restricted Securities Legend if required under Section 2.02: THIS
SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), AND THIS SECURITY AND ANY COMMON STOCK OF THE COMPANY ISSUABLE UPON
CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER AND THE COMPANY
THAT (A) THIS SECURITY AND ANY CLASS A COMMON STOCK OF THE COMPANY ISSUABLE UPON
CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (i) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
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84
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (i) THROUGH (iii) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]
CALPINE CORPORATION
Convertible Subordinated
Debenture Due August 1, 2030
No. $[ ]
[CUSIP No. ]
CALPINE CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called "the Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered assigns, the
principal sum [indicated on Schedule A hereof](1) [of [ ] Dollars](2)
($[______]) on August 1, 2030.
Interest Payment Dates: February 1, May 1, August 1 and November 1,
commencing November 1, 2000
Regular Record Dates: The close of business on the fifteenth day of each
January, May, August and November immediately
preceding the applicable Interest Payment Date
Reference is hereby made to the further provisions of this
Security set forth in the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
--------------------
(1) Applicable to Global Securities only.
(2) Applicable to certificated Securities only.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by one of its duly authorized officers.
Dated: , 20__ CALPINE CORPORATION
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: , 20__ WILMINGTON TRUST COMPANY, as
Trustee
By:
----------------------------------
Authorized Officer
3
86
[FORM OF REVERSE OF SECURITY]
CALPINE CORPORATION
Convertible Subordinated
Debenture Due August 1, 2030
1. Interest. CALPINE CORPORATION, a Delaware corporation (the
"Company"), is the issuer of this Convertible Subordinated Debenture Due August
1, 2030 (the "Security") limited in aggregate principal amount to $464,000,000
(or up to $535,000,000 to the extent the over-allotment option granted by the
Trust is exercised in full), issued under the Indenture hereinafter referred to.
The Company promises to pay interest on the Securities in cash from August 9,
2000 or from the most recent interest payment date to which interest has been
paid or duly provided for, quarterly (subject to deferral for up to 20
consecutive quarters as described in Section 3 hereof) in arrears on February 1,
May 1, August 1 and November 1 of each year (each such date, an "Interest
Payment Date"), commencing November 1, 2000, at the Applicable Rate, plus
Additional Payments, if any, until the principal hereof is paid or made
available for payment. If the Reset Date is prior to the Regular Record Date for
the immediately following Interest Payment Date, then interest and Additional
Amounts, if any, accrued from and after the Reset Date to but excluding the
immediately following Interest Payment Date shall be paid on such Interest
Payment Date to the Person in whose name each Security is registered on the
relevant Regular Record Date, subject to the right of the Company to initiate a
Deferral Period. If the Reset Date is on or after the Regular Record Date for
the immediately following Interest Payment Date, then (1) interest and
Additional Amounts, if any, accrued from and after the Regular Record Date to
but excluding the Reset Date shall be paid on the immediately following Interest
Payment Date to the Person in whose name each Security is registered on the
relevant Regular Record Date and (2) interest and Additional Amounts, if any,
accrued from and after the Reset Date to but excluding the immediately following
Interest Payment Date shall be paid on the second Interest Payment Date
immediately following the Reset Date to the Person in whose name each Security
is registered on the relevant Regular Record Date for such second Interest
Payment Date, subject in each case to the right of the Company to initiate a
Deferral Period. Prior to the Reset Date, the Applicable Rate shall be 5% per
annum. On and after tie Reset Date, the Applicable Rate shall be the rate
established by the Remarketing Agent to be effective on the Reset Date. Upon a
Registration Default, the Applicable Rate shall be adjusted as set forth in the
Registration Rights Agreement.
The amount of interest payable for any period will be computed
on the basis of twelve 30-day months and a 360-day year. To the extent lawful,
the Company shall pay interest on overdue installments of interest (without
regard to any applicable grace period) at the rate borne by the Securities,
compounded quarterly. Any interest paid on this Security shall be increased to
the extent necessary to pay Additional Sums as set forth in this Security.
2. Additional Amounts. The Company shall pay to Calpine Capital
Trust III (and its permitted successors or assigns under the Declaration) (the
"Trust") such additional amounts as may be necessary in order that the amount of
dividends or other
87
distributions then due and payable by the Trust on the Preferred Securities that
at any time remain outstanding in accordance with the terms thereof shall not be
reduced as a result of any additional taxes, duties and other governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States or any other taxing authority.
3. Extension of Interest Payment Period. So long as no Event of
Default has occurred and is continuing, the Company shall have the right, at any
time during the teen of this Security, from time to time to defer payments of
interest by extending the interest payment period of such Security for up to 20
consecutive quarters (a "Deferral Period"); provided that no Deferral Period may
extend beyond (i) the maturity (whether at August 1, 2030 or by declaration of
acceleration, call for redemption or otherwise) or (ii) in the case of a
Deferral Period that begins prior to the Reset Date, the Reset Date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
Section 3.13 of the Indenture, will bear interest thereon at the Applicable Rate
compounded quarterly for each quarter of the Deferral Period ("Compounded
Interest"). On the applicable Payment Resumption Date, the Company shall pay all
interest then accrued and unpaid on the Securities, including any Compounded
Interest to the Holders of the Securities in whose names the Securities are
registered in the Security Register on the record date fixed for such Payment
Resumption Date. Before the termination of any Deferral Period, the Company may
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters or
extend beyond (i) the maturity (whether at August 1, 2030 or by declaration of
acceleration, call for redemption or otherwise) or (ii) in the case of a
Deferral Period that begins prior to the Reset Date, the Reset Date. Upon the
termination of any Deferral Period and upon the payment of all Compounded
Interest and Additional Sums (together, "Additional Payments"), if any, then
due, the Company may commence a new Deferral Period, subject to the foregoing
requirements. No interest shall be due and payable during a Deferral Period
except on the applicable Payment Resumption Date.
The Company shall give the Holder of the Security and the
Trustee written notice (a "Deferral Notice") of its selection of a Deferral
Period at least ten days prior to the record date for any distributions that
would have been payable on the Trust Securities except for the decision to begin
or extend such Deferral Period. The Company may elect to pay all interest then
accrued and unpaid on the Securities, including Compounded Interest, on an
Interest Payment Date prior to its most recently established Payment Resumption
Date, provided that the Company gives the Holder of the Security and the Trustee
a new Deferral Notice setting forth the revised Payment Resumption Date at least
three business Days prior to the Regular Record Date for such revised Payment
Resumption Date.
The quarter in which any Deferral Notice is given pursuant to
the second paragraph of this Section 3 shall be counted as one of the 20
quarters permitted in the maximum Deferral Period permitted under the first
paragraph of this Section 3.
4. Method of Payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest install-
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88
ment, which shall be the close of business on the fifteenth day of January,
April, July or October as applicable, immediately preceding each Interest
Payment Date (the "Regular Record Date"), commencing October 15, 2000, or such
other Person as described herein or therein. If the Reset Date is prior to the
Regular Record Date for the immediately following Interest Payment Date, then
interest and Additional Amounts, if any, accrued from and after the Reset Date
to but excluding the immediately following Interest Payment Date shall be paid
on such Interest Payment Date to the Person in whose name each Security is
registered on the relevant Regular Record Date, subject to the right of the
Company to initiate a Deferral Period. If the Reset Date is on or after the
Regular Record Date for the immediately following Interest Payment Date, then
(1) interest and Additional Amounts, if any, accrued from and after the Regular
Record Date to but excluding the Reset Date shall be paid on the immediately
following Interest Payment Date to the Person in whose name each Security is
registered on the relevant Regular Record Date and (2) interest and Additional
Amounts, if any, accrued from and after the Reset Date to but excluding the
immediately following Interest Payment Date shall be paid on the second Interest
Payment Date immediately following the Reset Date to the Person in whose name
each Security is registered on the relevant Regular Record Date for such second
Interest Payment Date, subject in each case to the right of the Company to
initiate a Deferral Period. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than ten days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture;
provided that any such payment will be made in such coin or currency of the
United States of America which at the time is a legal tender for payment of
public and private debts.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
New York, New York, in such coin or currency of the United States of America
which at the time of payment is legal tender for payment of public and private
debts; provided, however, that at any time that the Property Trustee is not the
sole Holder of the Securities, payment of interest may, at the option of the
Company, be made by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or by wire transfer to an
account of such Person at a financial institution located in the United States,
notice-of which shall have been delivered to the Paying Agent at least ten days
prior to the applicable Interest Payment Date.
5. Paying Agent and Security Registrar. The Trustee will act as
Paying Agent, Security Registrar and Conversion Agent. The Company may change
any Paying Agent, Security Registrar, co-registrar or Conversion Agent without
prior notice. The Company or any of its Affiliates may act in any such capacity.
6. Indenture. The Company issued the Securities under an
indenture, dated as of August 9, 2000 (the "Indenture"), between the Company and
Wilmington Trust Company, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures
3
89
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The terms of the
Securities include those stated in the indenture and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb)
(the "Trust Indenture Act") as in effect on the date of the Indenture. The
Securities are subject to, and qualified by, all such terms, certain of which
are summarized hereon, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of such terms. The Securities are unsecured
general obligations of the Company limited to $464,000,000 in aggregate
principal amount (or up to $535,000,000 to the extent the over-allotment option
granted by the Trust is exercised in full) and subordinated in right of payment
to all existing and future Senior Debt of the Company. No reference herein to
the Indenture and no provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Security at the times, place and
rates, and in the coin or currency, herein prescribed or to convert this
Security as provided in the Indenture.
7. Optional Redemption. The Securities are redeemable at the
Company's option at any time and from time to time (an "Optional Redemption")
(i) in whole or in part, at any time or from time to time, prior to the Reset
Date but on or after August 5, 2003 until (but excluding) the Tender
Notification Date, at a Redemption Price (the "Initial Redemption Price") equal
to the prices per $50 principal amount of Securities set forth in the table
below, plus any accrued and unpaid interest, including Additional Payments, if
any, to the Redemption Date, if redeemed during the 12-month period ending on
August 5:
Price Per $50
Principal
Year Amount
---- ------
2004............................... $50.6250
2005................................ $50.0000;
(ii) after the Reset Date (except in the event of a Failed Final Remarketing),
in accordance with the Term Call protections, if any, established in connection
with the Remarketing and (iii) in whole or in part, at any time on or after the
third anniversary of the Reset Date following a Failed Final Remarketing at a
redemption price equal to 100% of the then outstanding aggregate principal
amount of the Securities to be redeemed, plus accrued and unpaid interest
thereon.
If the Company desires to consummate an Optional Redemption, it
must cause to be sent, at its own expense, notice of such intent (an "Optional
Redemption Notice"), via first-class mail, postage prepaid, to each Holder of
Securities to be redeemed, at such Holder's address appearing in the Security
Register. Holders receiving an Optional Redemption Notice have the right, upon
notification of the Trustee and the Conversion Agent on or prior to the Optional
Redemption Date, to convert their Securities called for redemption into common
stock of the Company, par value $.001 per share ("Common Stock"), at the
Applicable Conversion Ratio prior to the Optional
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90
Redemption Date in compliance with Article XIII of the Indenture. "Optional
Redemption Date" means the date which is not less than 20, nor more than 60,
days following the date on which the Optional Redemption Notice is sent, as
specified in the Optional Redemption-Notice (or if such date is not a Business
Day, the next succeeding Business Day).
Securities in denominations larger than $50 may be redeemed in
part but only in integral multiples of $50. In the event of a redemption of less
than all of the Securities, the Securities will be chosen for redemption by the
Trustee in accordance with the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof. On and after the Redemption Date, interest ceases to accrue on the
Securities or portions of them called for redemption.
8. The Remarketing. At least 30 Business Days but not more than
90 Business Days prior to August 1, 2005, the Company will cause a notice to be
sent to all Holders of Securities stating whether it intends to remarket the
Securities as Securities which will be convertible into Common Stock or which
will be nonconvertible. All Securities will be deemed tendered for remarketing
unless the Holder thereof delivers irrevocable notice to the contrary to the
Tender Agent prior to 5:00 p.m. New York Time on the Tender Notification Date
(or, if such day is not a Business Day, the next succeeding Business Day)(the
"Tender Notification Date"). The Remarketing Agent will establish, pursuant to
the terms of the Remarketing Agreement, the Term Provisions, including the Term
Rate at which interest will accrue on the Securities, to be effective beginning
on the Reset Date. A Holder of Securities that has not duly given notice that it
will retain its Securities will cease to have any further rights with respect to
such Securities upon the successful remarketing thereof, except the right of
such Holder to receive an amount equal to (i) from the proceeds of the
Remarketing, 101% of the aggregate principal amount of the Securities, plus
(ii) from the Company, any accrued but unpaid interest (including Additional
Payments, if any) to (but excluding) the Reset Date. In the event of a Failed
Final Remarketing, the Remarketing Agent will set the Term Provisions in
accordance with the Remarketing Agreement.
9. Optional Redemption Upon Tax Event. Subject to the
conditions set forth in the Indenture, the Securities are subject to redemption
in whole, but not in part, if a Tax Event shall occur and be continuing, at any
time within 90 days following the occurrence of such Tax Event, at a Redemption
Price equal to $50 per $50 principal amount thereof, plus accrued but unpaid
interest, including Additional Payments, if any, to the Redemption Date.
In lieu of the foregoing, the Company shall also have the
option of causing the Securities to remain outstanding and pay Additional Sums
on the Securities.
10. Notice of Redemption in Connection with a Tax Event. In
case of a redemption in connection with a Tax Event, notice of redemption will
be mailed by first class mail, postage prepaid, at least 30 days but not more
than 60 days before the Redemption Date to each Holder of the Securities to be
redeemed at such Holder's address appearing in the Security Register.
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91
11. Mandatory Repayment. The Securities will mature, and the
Company must repay the securities in whole and not in part, on August 1, 2030 at
a price equal to the aggregate principal amount thereof, plus accrued and unpaid
interest, including Additional Payments if any, to the Stated Maturity Date. The
failure of the Company to repay all Outstanding Securities on August 1, 2030
shall constitute an Event of Default.
12. No Sinking Fund. There are no sinking fund payments with
respect to the Securities.
13. Payment to Registered Holders Cessation of Interest Accrual
Upon Redemption.
If this Security is redeemed subsequent to a Regular Record
Date with respect to any Interest Payment Date specified above and on or prior
to such Interest Payment Date, then any accrued interest (and Additional
Payments, if any) will be paid to the Person to whom principal is payable.
On or after the Redemption Date, interest will cease to accrue
on the Securities, or portion thereof, called for redemption.
14. Subordination. The payment of the principal of, interest on
or any other amounts due on the Securities is subordinated in right of payment
to all existing and future Senior Debt (as defined below) of the Company, as
described in the Indenture. Each Holder, by accepting a Security, agrees to such
subordination and authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee as its attorney-in-fact for such purpose.
"Senior Debt" means (i) all indebtedness of the Company
evidenced by securities, debentures, bonds or other similar instruments issued
by the Company, (ii) all obligations to make payment pursuant to the terns of
financial instruments, such as (a) securities contracts and foreign currency
exchange contracts, (b) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts, and (c) similar financial instruments; except, in the case of
(i) above, such indebtedness and obligations that are expressly stated to rank
junior in right of payment to, or pari passu in right of payment with, the
Securities, (iii) and indebtedness or obligations of others of the kind
described in (i) and (ii) above for the payment of which the Company is
responsible or liable as guarantor or otherwise and (iv) deferrals, renewals or
extensions of any such Senior Debt; provided, however, that Senior Debt shall
not be deemed to include (a) any Debt of the Company which, when incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, was without recourse to the Company, (b) trade accounts
payable and accrued liabilities arising in the ordinary course of business,
which will not constitute Debt for purposes of the Preferred Securities, (c) any
Debt of the Company to any of its subsidiaries, except to the extent incurred
for the benefit of third parties, (d) Debt to any employee of the Company and
(e) Debt that expressly provides that it is not senior in right of payment to
the Securities.
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15. Conversion. The Holder of any Security has the right,
exercisable at any time prior to 5:00 p.m. New York City time, on or prior to
the Tender Notification Date or, in the event of a Convertible Remarketing or a
Failed Final Remarketing, from and after the Reset Date through August 1, 2030
(except that Securities called for redemption by the Company will be convertible
at any time prior to 5:00 p.m., New York City time, on any Redemption Date) to
convert the principal amount thereof (or any portion thereof that is an integral
multiple of $50) into shares of Common Stock. On or Prior to the Tender
Notification Date, each Security is convertible, at the option of the Holder
into 0.5755 shares of Common Stock for each $50 in aggregate principal amount of
Securities (equivalent to a conversion price of $86.875 per share of Common
Stock). On and after the Reset Date, the Securities may, at the option of the
Company and subject to the results of the Remarketing, become nonconvertible or
convertible into a different number of shares of Common Stock. The conversion
ratio and equivalent conversion price in effect at any time are known as the
"Applicable Conversion Price" and the "Applicable Conversion Ratio,"
respectively, and are subject to adjustment under certain circumstances. If a
Security is called for redemption, the conversion right will terminate at 5:00
p.m. New York City time on the corresponding Redemption Date, unless the Company
defaults in making the payment due upon redemption.
To convert a Security, a Holder must (1) complete and sign a
conversion notice substantially in the form attached hereto, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements or transfer
documents if required by the Security Registrar or Conversion Agent and (4) pay
any transfer or similar tax, if required. Upon conversion, no adjustment or
payment will be made for interest or dividends, but if any Holder surrenders a
Security for conversion after the close of business on the Regular Record Date
for the payment of an installment of interest and prior to the opening of
business on the next Interest Payment Date, then, notwithstanding such
conversion, the interest payable on such Interest Payment Date will be paid to
the registered Holder of such Security on such Regular Record Date (other than
any Security whose Maturity is prior to such Interest Payment Date). In such
event, such Security, when surrendered for conversion, need not be accompanied
by payment of an amount equal to the interest payable on such Interest Payment
Date on the portion so converted. The number of shares issuable upon conversion
of a Security is determined by dividing the principal amount of the Security
converted by the Applicable Conversion Price in effect on the Conversion Date.
No fractional shares will be issued upon conversion but a cash adjustment will
be made for any fractional interest. The outstanding principal amount of any
Security shall be reduced by the portion of the principal amount thereof
converted into shares of Common Stock.
16. Registration Rights. In addition to the rights provided to
Holders of Securities in the Indenture, Holders of Restricted Securities shall
have all the rights set forth in the Registration Rights Agreement.
17. Registration, Transfer, Exchange and Denominations. As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of
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authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $50 and integral multiples thereof. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes (subject to
Section 1 hereof), whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary. In the event of redemption or conversion of this Security in part
only, a new Security or Securities for the unredeemed or unconverted portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
18. Persons Deemed Owners. Except as provided in Section 1
hereof, the registered Holder of a Security may be treated as its owner for all
purposes.
19. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent shall
pay the money back to the Company at its written request. After that, Holders of
Securities entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
20. Events of Default and Remedies. The Securities shall have
the Events of Default as set forth in Section 5.01 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities by notice to the
Company and the Trustee may declare all amounts payable on the Securities
(including any Additional Payments) to be due and payable immediately; provided
that, if the Property Trustee is the sole Holder of the Securities and if upon
an Event of Default, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the then Outstanding Securities fail to declare
the principal of all the Securities to be immediately due and payable, the
Holders of at least 25% in aggregate liquidation amount of Preferred Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee, and upon any such declaration such principal and all accrued
interest (and Additional Payments, if any) shall become immediately due and
payable. The Holders of a majority in aggregate principal amount of the
Outstanding Securities may annul such declaration and waive the default by
written notice to the Property Trustee, the Company and the Trustee if, among
other things, the default (other than the nonpayment of the principal of these
Securities which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest (and Additional
Payments, if any) and principal due otherwise than by acceleration has been
deposited with the Trustee. Should the Holders of the Securities of such a
series fail to annul such declaration and waive such default, the Holders of a
majority in aggregate liquidation amount of the Preferred Securities shall have
such right. Upon the effectiveness of any such declaration such principal amount
of and the accrued interest (including any Additional Payments) on all the
Securities of such series shall then become immediately due and payable; and
provided further that the payment of principal
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and interest on such Securities shall remain subordinated to the extent provided
in the Indenture.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the Outstanding Securities issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
21. Amendments. Supplements and Waivers. The Indenture permits,
subject to the rights of the Holders of Preferred Securities set forth therein
and in the Declaration and with certain other exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, subject to the
rights of the Holders of the Preferred Securities set forth therein and in the
Declaration, to waive certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder. and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security. The above description of amendments,
supplements and waivers is qualified by reference to, and subject in its
entirety by the more complete description thereof contained in the Indenture.
22. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not a Trustee, subject to certain
limitations provided for in the Indenture and in the Trust Indenture Act. Any
Agent may do the same with like rights.
23. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
24. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
25. Authentication. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee or
an authenticating agent.
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26. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
27. Definitions of Terms. All terms used in this Security which
are defined in the Indenture or in the Declaration referred to herein shall have
the meanings assigned to them in the Indenture or the Declaration, as the case
may be.
The Company will furnish to any Holder of the Securities upon
written request and without charge a copy of the Indenture. Requests may be made
to:
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for him.
Your Signature:
---------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Security)
Date:
---------------------------
Signature Guarantee:(3)
------------------------------------------------
[Include the following if the Security bears a Restricted Securities Legend --
In connection with any transfer of any of the Securities evidenced by this
certificate, the undersigned confirms that such Securities are being:
----------------------
(3) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition, to, or m substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
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CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer; or
(2) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(3) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(4) [ ] transferred pursuant to an effective registration statement
under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (2) or (3) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
-------------------------------
Signature
Signature Guarantee:(4)
------------------------------------- ------------------------------
Signature must be guaranteed Signature
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.]
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
------------------------------
(4) (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
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information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated:
-----------------------------------
---------------------------------
NOTICE: [To be executed by
an executive officer]
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security shall
be $ . The following increases or decreases in the principal amount of
this Global Security have been made:
=============================================================================================================================
Principal Amount of this
Amount of increase in Amount of decrease in Global Security follow- Signature of authorized
Principal Amount of this Principal Amount of this ing such decrease or officer of Trustee or
Date Made Global Security Global Security increase Securities Custodian
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ELECTION TO CONVERT
To: Calpine Corporation
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below designated,
into Common Stock of Calpine Corporation in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned, unless a
different name has been indicated in the assignment below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Security, agrees to be bound
by the terms of the Registrations Rights Agreement relating to the Common Stock
issuable upon conversion of the Securities.
Date:
in whole _
Portions of Security to be converted ($50 or
integral multiples thereof):
$_________________
------------------------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Signature Guarantee:(5)
--------------------------
(5)(Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
101
EXHIBIT B
REMARKETING AGREEMENT
