1
EXHIBIT 4.4
================================================================================
BUDGET GROUP, INC.
TO
THE BANK OF NEW YORK
TRUSTEE
----------------
INDENTURE
DATED AS OF JUNE 19, 1998
----------------
$309,278,400
(SUBJECT TO INCREASE TO UP TO $355,670,150 IN
THE EVENT AND TO THE EXTENT AN OVER-ALLOTMENT
OPTION IS EXERCISED)
HIGH TIDES DEBENTURES DUE 2028
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Other Provisions of
--------------------------------
General Application
-------------------
SECTION 1.01. Definitions............................................................. 3
SECTION 1.02. Compliance Certificates and
Opinions............................................................. 18
SECTION 1.03. Form of Documents Delivered to
Trustee............................................................... 18
SECTION 1.04. Acts of Holders; Record Dates........................................... 19
SECTION 1.05. Notices, Etc., to Trustee and the
Company.............................................................. 21
SECTION 1.06. Notice to Holders; Waiver............................................... 21
SECTION 1.07. Conflict with Trust Indenture Act....................................... 22
SECTION 1.08. Effect of Headings and Table of
Contents............................................................. 22
SECTION 1.09. Successors and Assigns.................................................. 22
SECTION 1.10. Separability Clause..................................................... 22
SECTION 1.11. Benefits of Indenture................................................... 22
SECTION 1.12. Governing Law........................................................... 23
SECTION 1.13. Legal Holidays.......................................................... 23
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally......................................................... 23
SECTION 2.02. Initial Issuance to Property
Trustee............................................................... 24
SECTION 2.03. Additional Provisions Required in
Global Security...................................................... 24
SECTION 2.04. Issuance of Global Securities to
Holders.............................................................. 25
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms......................................................... 26
SECTION 3.02. Denominations........................................................... 28
SECTION 3.03. Execution, Authentication, Delivery and
Dating............................................................... 28
SECTION 3.04. Temporary Securities.................................................... 28
SECTION 3.05. Global Securities....................................................... 29
i
3
Page
----
SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges............................................................ 30
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities........................................................... 34
SECTION 3.08. Payment of Interest; Interest Rights
Preserved............................................................ 35
SECTION 3.09. Persons Deemed Owners................................................... 37
SECTION 3.10. Cancelation............................................................. 37
SECTION 3.11. Right of Set Off........................................................ 38
SECTION 3.12. CUSIP Numbers........................................................... 38
SECTION 3.13. Extension of Interest Payment Period;
Notice of Extension.................................................. 38
SECTION 3.14. Paying Agent, Security Registrar and
Conversion Agent..................................................... 39
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of
Indenture............................................................. 40
SECTION 4.02. Application of Trust Money.............................................. 41
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default....................................................... 41
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment........................................................ 43
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee........................................... 46
SECTION 5.04. Trustee May File Proofs
of Claim............................................................. 46
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities............................................. 47
SECTION 5.06. Application of Money Collected.......................................... 47
SECTION 5.07. Limitation on Suits..................................................... 47
SECTION 5.08. Unconditional Right of Holders to
Receive Principal and Interest and
Convert.............................................................. 48
SECTION 5.09. Restoration of Rights and Remedies...................................... 49
SECTION 5.10. Rights and Remedies Cumulative.......................................... 49
SECTION 5.11. Delay or Omission Not Waiver............................................ 49
SECTION 5.12. Control by Holders...................................................... 49
SECTION 5.13. Waiver of Past Defaults................................................. 50
SECTION 5.14. Undertaking for Costs................................................... 50
SECTION 5.15. Waiver of Stay or Extension Laws........................................ 50
SECTION 5.16. Enforcement by Holders of Preferred
Securities........................................................... 51
ii
4
Page
----
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities..................................... 51
SECTION 6.02. Notice of Defaults...................................................... 52
SECTION 6.03. Certain Rights of Trustee............................................... 52
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities............................................... 54
SECTION 6.05. May Hold Securities..................................................... 54
SECTION 6.06. Money Held in Trust..................................................... 54
SECTION 6.07. Compensation and Reimbursement.......................................... 54
SECTION 6.08. Disqualification; Conflicting
Interests............................................................. 55
SECTION 6.09. Corporate Trustee Required;
Eligibility........................................................... 55
SECTION 6.10. Resignation and Removal; Appointment of
Successor............................................................ 55
SECTION 6.11. Acceptance of Appointment by
Successor............................................................. 57
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business............................................... 57
SECTION 6.13. Preferential Collection of Claims
Against Company...................................................... 58
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders................................................. 58
SECTION 7.02. Preservation of Information;
Communications to Holders............................................ 58
SECTION 7.03. Reports by Trustee...................................................... 59
SECTION 7.04. Reports by Company...................................................... 59
SECTION 7.05. Tax Reporting .......................................................... 59
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, Etc., Only on
Certain Terms........................................................ 60
SECTION 8.02. Successor Substituted................................................... 61
iii
5
Page
----
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent
of Holders........................................................... 61
SECTION 9.02. Supplemental Indentures with Consent of
Holders.............................................................. 62
SECTION 9.03. Execution of Supplemental
Indentures............................................................ 63
SECTION 9.04. Effect of Supplemental
Indentures............................................................ 64
SECTION 9.05. Conformity with Trust Indenture
Act................................................................... 64
SECTION 9.06. Reference in Securities to Supplemental
Indentures........................................................... 64
ARTICLE X
Covenants; Representations and Warranties
-----------------------------------------
SECTION 10.01. Payment of Principal and Interest....................................... 64
SECTION 10.02. Maintenance of Office or Agency......................................... 65
SECTION 10.03. Money for Security Payments to Be Held
in Trust............................................................. 65
SECTION 10.04. Statement by Officers as to
Default............................................................... 66
SECTION 10.05. Limitation on Dividends; Transactions
with Affiliates; Covenants as to the
Trust................................................................ 66
SECTION 10.06. Payment of Expenses of the Trust........................................ 68
SECTION 10.07. Registration Rights..................................................... 68
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Optional Redemption..................................................... 69
SECTION 11.02. Mandatory Redemption Upon Failed Final
Remarketing.......................................................... 71
SECTION 11.03. Tax Event Redemption.................................................... 71
SECTION 11.04. Redemption at Stated Maturity........................................... 72
SECTION 11.05. Selection by Trustee of Securities to
Be Redeemed.......................................................... 72
SECTION 11.06. Notice of Redemption.................................................... 73
SECTION 11.07. Deposit of Redemption Price............................................. 73
SECTION 11.08. Securities Payable on
Redemption Date...................................................... 74
SECTION 11.09. Securities Redeemed in Part............................................. 74
iv
6
Page
----
ARTICLE XII
Subordination of Securities
---------------------------
SECTION 12.01. Agreement to Subordinate................................................ 75
SECTION 12.02. Default on Senior Debt.................................................. 75
SECTION 12.03. Liquidation; Dissolution;
Bankruptcy............................................................ 77
SECTION 12.04. Subrogation............................................................. 78
SECTION 12.05. Trustee to Effectuate
Subordination......................................................... 80
SECTION 12.06. Notice by the Company................................................... 80
SECTION 12.07. Rights of the Trustee; Holders of
Senior Debt.......................................................... 81
SECTION 12.08. Subordination May Not Be Impaired....................................... 81
ARTICLE XIII
Conversion of Securities
------------------------
SECTION 13.01. Conversion Rights....................................................... 82
SECTION 13.02. Conversion Procedures................................................... 83
SECTION 13.03. Conversion Price Adjustments............................................ 86
SECTION 13.04. Reclassification, Consolidation, Merger
or Sale of Assets.................................................... 92
SECTION 13.05. Notice of Adjustments of Conversion
Price................................................................ 93
SECTION 13.06. Prior Notice of Certain Events.......................................... 93
SECTION 13.07. Adjustments in Case of Fundamental
Changes.............................................................. 94
SECTION 13.08. Dividend or Interest Reinvestment
Plans................................................................. 98
SECTION 13.09. Certain Additional Rights............................................... 98
SECTION 13.10. Restrictions on Common Stock Issuable
Upon Conversion...................................................... 99
SECTION 13.11. Trustee Not Responsible for Determining
Conversion Price or Adjustments...................................... 99
EXHIBT A Form of Security
v
7
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- ----------
ss. 310(a)(1)....................................................................... 6.09
(a)(2)....................................................................... 6.09
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(b).......................................................................... 6.08, 6.10
ss. 311(a).......................................................................... 6.13
(b).......................................................................... 6.13
ss. 312(a).......................................................................... 7.01
7.02(a)
(b).......................................................................... 7.02(b)
(c).......................................................................... 7.02(c)
ss. 313(a).......................................................................... 7.03(a)
(a)(4)....................................................................... 7.03(a)
(b).......................................................................... 7.03(a)
(c).......................................................................... 7.03(a)
(d).......................................................................... 7.03(b)
ss. 314(a).......................................................................... 7.04
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 1.02
(c)(2)....................................................................... 1.02
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 1.02
ss. 315(a).......................................................................... 6.01
6.03
(b).......................................................................... 6.02
(c).......................................................................... 6.01
(d).......................................................................... 6.01
(e).......................................................................... 5.14
ss. 316(a)(1)(A).................................................................... 5.02
5.12
(a)(1)(B).................................................................... 5.13
(a)(2)....................................................................... Not Applicable
(b).......................................................................... 5.08
(c).......................................................................... 1.04(c)
ss. 317(a)(1)....................................................................... 5.03
(a)(2)....................................................................... 5.04
(b).......................................................................... 1.003
ss. 318(a).......................................................................... 1.07
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
vi
8
INDENTURE, dated as of June 19, 1998, between
Budget Group, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein
called the "Company") having its principal office at 000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000, and
The Bank of New York, a New York banking corporation, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS Budget Group Capital Trust, a Delaware business trust (the
"Trust"), governed by the Amended and Restated Declaration of Trust among the
Company, as Sponsor, The Bank of New York, as property trustee (the "Property
Trustee"), and The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee"), and Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx,
as trustees (together with the Property Trustee and the Delaware Trustee, the
"Issuer Trustees"), dated as of June 19, 1998 (the "Declaration"), pursuant to
the Purchase Agreement (the "Purchase Agreement") dated June 16, 1998, among the
Company, the Trust and the Initial Purchasers named therein, will issue and sell
up to 6,000,000 of its Remarketable Term Income Deferrable Equity Securities
(HIGH TIDES) (or up to 6,900,000 to the extent the over-allotment option is
exercised in full) (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 $300,000,000 (or up to $345,000,000 to the
extent the over-allotment option is exercised in full);
WHEREAS the 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 three percent of the capitalization of the Trust, equivalent to
up to 185,568 Common Securities (or up to 213,403 Common Securities to the
extent the over-allotment option 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 $9,278,400 (or up to
$10,670,150 to the extent the over-allotment option 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 from the Company
Securities (as defined below)
9
2
in an aggregate principal amount of up to $309,278,400 (or up to $355,670,150 to
the extent the over-allotment option is exercised in full);
WHEREAS the Company is guaranteeing the payment of distributions on
the Trust Securities, and payment of the Redemption Price (as defined herein)
and payments on liquidation with respect to the Trust Securities, to the extent
provided in the Guarantee Agreement (the "Guarantee") between the Company and
The Bank of New York, 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 HIGH TIDES Debentures Due 2028 (the "Securities"), of substantially the
tenor and amount hereinafter set forth and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture;
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 and the Remarketing Agent (as defined herein)
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.
10
3
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
(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.
"Accelerated Redemption" has the meaning specified in
Section 11.01(a).
"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.
"Additional Payments" means Compounded Interest and
Additional Amounts, if any.
"Additional Sums" has the meaning specified in
Section 3.01.
11
4
"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 Registrar, Paying Agent, Conversion
Agent or co-registrar.
"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 6 1/4% per annum (the "Initial Rate"). Beginning
with and after the Reset Date, the Applicable Rate shall be the Term Rate (as
defined in herein). In the event of a Registration Default, the Applicable Rate
shall increase by .50%, subject to the provisions of Section 10.07 hereof.
"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.
12
5
"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.
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company.
"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 instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the
Second Recital to this instrument.
"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 Class A Common Stock of the
Company at the date of this instrument 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).
"Common Stock Offering" means any sale or sales of Common Stock by
the Company, in any manner, the closing or
13
6
closings of which occur not more than 90 days prior to an Optional Redemption
Notification Date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"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
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 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Declaration" has the meaning specified in the Recitals of this
instrument.
"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
14
7
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (vii) 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 of
this instrument.
"Depositary" means the Depository Trust Company, or any successor
thereto.
"Designated Senior Debt" means (i) any obligation under the Senior
Credit Agreement and (ii) any other Senior Debt the principal amount of which is
$50 million or more and that has been designated by the Company as "Designated
Senior Debt" in the instruments governing such Senior Debt.
"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.
"ex" date has the meaning specified in Section 13.03.
"Expiration Date" has the meaning specified in Section 1.04(d).
"Expiration Time" has the meaning specified in Section 13.03(vi).
15
8
"Failed Final Remarketing" has the meaning specified in Section 2(d)
of the Remarketing Agreement.
"Failed Remarketing Redemption Price" has the meaning specified in
Section 11.02.
"Fundamental Change" has the meaning specified in Section 13.07(b).
"Global Security" means a Security issued in the form prescribed in
Section 2.03, 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
instrument.
"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, and Xxxxxxx, Sachs & Co., X.X. Xxxxxx
Securities Inc., ABN AMRO Incorporated, BT Alex. Xxxxx Incorporated, XxXxxxxx &
Company Securities, Inc. and NationsBanc Xxxxxxxxxx Securities LLC.
"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.
16
9
"Interest Payment Date" has the meaning specified in Section 3.01.
"Issuer Trustees" has the meaning specific in the First Recital of
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 acceler
ation, 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.
"Notice of Default" has the meaning specified in Section 5.01.
"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).
17
10
"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' 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 (i) 20 to 40 days
following the Optional Redemption Notification Date, as specified in the
Optional Redemption Notice (or if such date is not a Business Day, the next
succeeding Business Day) or (ii) in the event that the Company decides to make
an Accelerated Redemption, five Business Days following the Optional Redemption
Notification Date.
"Optional Redemption Notice" has the meaning specified in Section
11.01(b).
"Optional Redemption Notification Date" has the meaning set forth 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 cancelation; (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
18
11
been duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and (iii) Securities which have been paid pursuant to
Section 3.08, 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.
"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.
"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 Recitals to
this instrument.
"Primary Treasury Dealer" has the meaning specified in the
Remarketing Agreement.
"Property Trustee" has the meaning specified in the Recitals of this
instrument.
"Purchase Agreement" has the meaning specified in the Recitals to
this instrument.
"Purchased Shares" has the meaning specified in Section 13.03(vi).
"Purchaser Stock Price" has the meaning specified in Section
13.07(b).
19
12
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"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 (as defined herein), there is more than an insubstantial risk
that 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.
"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 specified in Section 10.07.
"Registration Rights Agreement" has the meaning specified in Section
10.07.
"Regular Record Date" has the meaning specified in Section 3.01.
"Relevant Price" has the meaning specified in Section 13.07(b).
"Remarketing" has the meaning specified in the Seventh Recital to
this instrument.
"Remarketing Agent" means an investment bank, broker, dealer, or
other organization which, in the opinion of the Company, is qualified to
remarket the Preferred
20
13
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.
"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.
"Reset Date" means June 15, 2005 (or, if such day is not a Business
Day, the next succeeding Business Day), or such earlier day 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.
"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
instrument.
"Securities Act" means the Securities Act of 1933.
21
14
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.06.
"Senior Credit Agreement" means that certain Amended and Restated
Credit Agreement, dated on or about June 19, 1998, by and among the Company, the
lenders parties thereto, Credit Suisse First Boston, as a co-arranger, a
co-syndication agent and the administrative agent, and NationsBanc Xxxxxxxxxx
Securities LLC, as a co-arranger, a co-syndication agent and the documentation
agent, including, without limitation, any related notes, letters of credit,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and, in each case, as amended, amended and restated,
modified, renewed, refunded, replaced or refinanced from time to time, including
any agreement (i) extending or shortening the maturity of any obligation
incurred thereunder or contemplated thereby, (ii) adding or deleting borrowers
or guarantors thereunder and (iii) increasing the amount of credit extended, or
available to be extended, thereunder.
"Senior Debt" means (i) all obligations of the Company under the
Senior Credit Agreement, including, without limitation, principal (including,
without limitation, reimbursement obligations in respect of letters of credit
(whether or not drawn) and obligations to cash collateralize letters of credit),
premium (if any), interest (including, without limitation, interest accruing
subsequent to the filing of, or which would have accrued but for the filing of,
a petition for bankruptcy, whether or not such interest is an allowable claim in
such bankruptcy proceeding), fees, indemnifications, expenses and other amounts
payable pursuant thereto, (ii) the principal of, and premium and interest, if
any, on all indebtedness of the Company for money borrowed, whether outstanding
on the date of execution of the Indenture or thereafter created, assumed or
incurred, (iii) all obligations to make payment 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
both (ii) and (iii) 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, (iv) and indebtedness or obligations of others of the kind
described in (i), (ii) and (iii) above for the payment of which the Company is
responsible or liable as guarantor or
22
15
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, (c) any Debt of the Company to any
of its subsidiaries, (d) Debt to any employee of the Company, and (e) Debt which
by its terms is subordinated to trade accounts payable or accrued liabilities
arising in the ordinary course of business to the extent that payments made to
the holders of such Debt by the Holders of the Securities as a result of the
subordination provisions of the Indenture would be greater than such payments
otherwise would have been as a result of any obligation of such holders of such
Debt to pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject.
"Shelf Registration Statement" has the meaning specified in Section
10.07.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.08.
"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.
"Stated Maturity Price" has the meaning specified in Section 11.04.
"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.
23
16
"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, provided, however, that clauses (x)(ii) and (y) shall not apply if
the reason for the nondeductibility of such interest (or OID) is based on the
particular use (or deemed use) by the Company or an Affiliate of the proceeds of
the issuance of the Securities.
"Tender Notification Date" means Friday, May 20, 2005, or if such day
is not a Business Day, the next succeeding Business Day.
24
17
"Term Call Protections" means the price, manner and time, if any, at
which the Securities may be redeemed with the proceeds of a Common Stock
Offering after the Reset Date. 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 distributions 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
instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument 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.
25
18
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.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made 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
26
19
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 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
27
20
any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders. If
not set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 7.01) prior to such first solicitation or vote, as
the case may be. With regard to any record date, only the Holders on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The 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
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, 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.
28
21
(e) The ownership of Securities shall be proved by the Security
Register.
(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
Trustee 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 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
29
22
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 notification 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. 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. 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
30
23
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. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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 Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, shall be the immediately preceding Business
Day) with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or on such last day for conversion,
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
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
31
24
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
distribution 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 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
32
25
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 WATER STREET, NEW YORK) TO BUDGET GROUP, INC. 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 the 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
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.
33
26
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities that may be authenticated and delivered under this Indenture is
limited to the sum of (a) $309,278,400 and (b) such aggregate principal amount
(which may not exceed $46,391,750 aggregate principal amount) of Securities, if
any, as shall be purchased by the Trust pursuant to an over-allotment option 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.
The Securities shall be known and designated as the "HIGH TIDES
Debentures Due 2028" of the Company. Their Stated Maturity shall be June 15,
2028, and they shall bear interest at the Applicable Rate, from June 19, 1998,
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 March 15,
June 15, September 15 and December 15 (each an "Interest Payment Date") of each
year, commencing September 15, 1998 until the principal thereof is paid or made
available for payment, and they 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 first day
of each March, June, September and December next preceding the applicable
Interest Payment Date (the "Regular Record Date"). Each registered Holder of
Securities on June 1, 2005 (including any Holder which has tendered or is deemed
to have tendered its Securities for remarketing) shall be paid interest and
Additional Payments, if any, accrued to (but excluding) the Reset Date on June
15, 2005 (or, if such day is not a Business Day, the next succeeding Business
Day). Interest and Additional Payments, if any, accrued from and after the Reset
Date to (but excluding) September 15, 2005 shall be paid on September 15, 2005
(or, if such day is not a Business Day, the next succeeding Business Day) to the
Person in whose name each Security is registered on the preceding September 1,
subject 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.
34
27
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. In the event
that any date on which interest is payable on the Securities is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
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, 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.
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.
The Securities shall be redeemable as provided in Article XI hereof.
The Securities shall be subordinated in right of payment to Senior
Debt as provided in Article XII hereof.
35
28
The Securities shall be convertible as provided in Article XIII
hereof.
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, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its 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.
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, 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.
36
29
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 cancelation 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.
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, and no successor depositary shall have been appointed,
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, (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 cancelation 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 cancelation as provided
in this Article III or
37
30
(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 Restricted Securities Certificate, 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.
(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.
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
and in any other office or agency designated pursuant to Section 10.02 being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
38
31
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.
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
39
32
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) a Securities Certificate 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
40
33
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.
(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 Section 3.06(d) and 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 countersign 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 countersign 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 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
41
34
such Restricted Security; and (B) in the case of any Restricted Security that
is represented by a Global Security, the Security Registrar 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 in 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 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.
42
35
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.
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 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
43
36
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 regis tered 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
44
37
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.
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 foregoing, 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. Cancelation. 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 cancelation 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. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order;
45
38
provided, however, that the Trustee shall not be required to destroy the
certificates representing such canceled Securities.
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 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 June 15, 2028 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 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 fixed for 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
46
39
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters or extend beyond (i) the maturity (whether at
June 15, 2028 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 Holder of the Securi ty 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 Holder of the
Security 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 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.
(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 Xxxxxxxxx,
00
00
co-registrar or 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 3.06 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 cancelation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancelation
(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 cancelation, for principal and
48
41
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; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 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.
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 XI or Article XII or be voluntary or
involuntary or be effected by
49
42
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 when due, whether at its Maturity upon redemption, by
declaration of acceleration or otherwise; 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 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 or a decree or order by a court having jurisdiction in
the premises adjudging the Company as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its property
or ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it
50
43
of a petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts generally
as they become due and its willingness to be adjudicated a bankrupt, or the
taking of corporate action by the Company in furtherance of any such action;
or
(7) in the event of a Failed Final Remarketing, the failure of the
Company to redeem the outstanding Securities in whole at 101% of their
aggregate principal amount, plus interest and Additional Payments, if any, on
the Reset Date; or
(8) the failure of the Company to repay the full amount of the Stated
Maturity Price on June 15, 2028 with the proceeds of the sale of
nonconvertible preferred securities or nonconvertible trust-preferred
securities of the Company in accordance with the provisions of Section 11.04;
or
(9) 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 out standing
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 amount of the
Outstanding Securities fail to declare the principal of all the Securities to be
immediately due and payable, the Holders of
51
44
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; and
provided further that any such declaration will not be effective until the
earlier to occur of (i) ten business days after receipt by the Company and the
administrative agent under the Senior Credit Agreement of written notice of such
declaration and (ii) acceleration of obligations under the Senior Credit
Agreement. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of a series may annul such declaration and waive the
default by written notice to the Property Trustee, the Company and the Trustee
if 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 (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 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
52
45
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.
The Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under this Indenture.
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 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.
53
46
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 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
54
47
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. Subject to Article XII,
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: 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
55
48
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;
(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
56
49
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. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 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.
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
57
50
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 other wise 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 in the Trust Indenture Act; provided, that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company 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
58
51
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 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 other
remedy available to the Holders of the Securities.
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
59
52
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) 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 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
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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 "de fault" 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;
60
53
(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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, 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;
(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
61
54
(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:
(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
62
55
(3) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense 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.
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.
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. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 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
63
56
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 or
resignation, the resigning 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 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
64
57
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 and the agent or representative for the holders of all Designated Senior
Debt 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
65
58
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).
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) semiannually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than 15 days prior to the
delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as 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
66
59
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 May 15 of
each year, commencing May 15, 1999, 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 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 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 1099-0ID or any successor form.
67
60
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, 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;
(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 supple mental indenture, comply with
this Article and
68
61
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 all or substantially all the properties and assets of the
Company on a consolidated basis 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 of the Holders of the Securities
or, so long as any of the
69
62
Preferred Securities shall remain outstanding, the Holders of the Preferred
Securities;
(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.
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,
70
63
(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 compliance with certain provisions of this Indenture or 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.
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
or compliance with any covenant under this Indenture shall be effective, without
the prior consent of the Holders of the percentage of the aggregate principal
amount of such Preferred Securities then outstanding which is at least equal to
the percentage of aggregate stated liquidation 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
71
64
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 execu tion of such
supplemental indenture is authorized or permit xxx 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.
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 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.
72
65
SECTION 10.02. Maintenance of Office or Agency. The Company will
maintain in the United States 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.
73
66
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 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 in
the performance and observance of any of the material 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.
74
67
(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 in interest to the Securities or
(iii) make any guarantee payments with respect to any guarantee by the Company
of the debt securities of any Subsidiary of the Company if such guarantee ranks
pari passu with or junior in interest to 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, (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) as 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
75
68
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 offering, sale and 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 under the Indenture in accordance with the provisions of Section 6.07
of the Indenture;
(b) be responsible for and pay for all debts and obligations (other
than with respect to the Trust Securi ties) 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 underwriters 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
(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 June 19, 1998, among the Company, the Trust and the Initial
Purchasers (the "Registration Rights Agreement"). Pursuant to the Registration
Rights Agreement the Company and the Trust have
76
69
agreed for the benefit of the holders of the Registrable Securities that they
will (i) at the Company's sole expense, prior to August 18, 1998 file a shelf
registration statement (the "Shelf Registration Statement") with the Commission
with respect to resales of the Registrable Securities, (ii) use their best
efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act prior to October 19, 1998 and (iii) use their best
efforts to maintain such Shelf Registration Statement continuously effective and
useable for two years or such other period as shall be required under Rule
144(k) under the Securities Act or any successor rule thereto or, if earlier,
such time as all of the applicable Registrable Securities have been sold
thereunder (except that the Company will be permitted to suspend the use of the
Shelf Registration Statement during certain periods under certain circumstances
specified in the Registration Rights Agreement). If the Company fails to comply
with any of clauses (i) through (iii) above, subject to certain exceptions
provided in the Registration Rights Agreement, (a "Registration Default") then,
at such time, the Applicable Rate will increase by 50 basis points (.50%). Such
increase will remain in effect from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured, on which date the interest rate on the
Securities will revert to the interest rate originally borne by the Securities.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Optional Redemption. (a) The Company shall have the
right to redeem the Securities solely from the proceeds of a Common Stock
Offering (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 June 20, 2001 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 June 15:
Price Per $50
Principal
Year Amount
---- ------
2002 $51.5625
77
70
2003 51.0417
2004 50.5208
2005 50.00
and (ii) after the Reset Date, in accordance with the Term Call Protections, if
any, established in the Remarketing (any Redemption Price so established in the
Remarketing, the "Term Redemption Price", and, together with the Initial
Redemption Price, an "Optional Redemption Price"). The Company may make an
Optional Redemption on an accelerated basis (an "Accelerated Redemption")
whenever, on an Optional Redemption Notification Date (as defined in Section
11.01(b)), the Closing Price of the Common Stock on New York Stock Exchange
Composite Tape for each of the five Trading Days prior to such Optional
Redemption Notification Date was equal to or greater than 125% of the Applicable
Conversion Price.
(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, within 90 days
following the closing of the applicable Common Stock Offering (the "Optional
Redemption Notification Date") to each Holder of Securities (and, if the
Preferred Securities are still outstanding, to each Holder of the corresponding
Preferred Securities) to be redeemed, at such Holder's address appearing in the
Security Register and the List of Holders, if applicable; provided that in the
case of an Accelerated Redemption, the Optional Redemption Notice must be
received by such Holders not later than the Business Day immediately following
the Optional Redemption Notification Date. 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 Company 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 or Accelerated 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 (i) in the case of an Optional
Redemption, within 2 Business Days following the closing of the applicable
Common Stock Offering and (ii) in the case of an Accelerated
78
71
Redemption, on the date that the applicable Common Stock Offering commences, or
as soon as practicable thereafter.
SECTION 11.02. Mandatory Redemption Upon Failed Final Remarketing. In
the event of a Failed Final Remarketing, the Company shall be required to redeem
the Securities in whole, and not in part, on the Reset Date at 101% of the
principal amount thereof, plus accrued and unpaid interest, including Additional
Payments, if any, to the Redemption Date (the "Failed Remarketing Redemption
Price"). In the event of a Failed Final Remarketing, the failure of the Company
to redeem all the Outstanding Securities on the Reset Date shall constitute an
Event of Default.
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 and within 90 days following the
occurrence and continuation of a Tax Event 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 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.
79
72
(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 the Securities pursuant to Section 3.01 for so long as (i) a Tax
Event has occurred and is continuing and (ii) the Property Trustee is the sole
Holder of the Securities.
SECTION 11.04. Redemption at Stated Maturity. (a) The Company
shall repay all of the Outstanding Securities, if any, on June 15, 2028, at a
price equal to the aggregate principal amount thereof, plus any accrued and
unpaid interest, including Additional Payments, if any, to the Redemption Date
(the "Stated Maturity Price"). The Company must finance payment of the Stated
Maturity Price with the proceeds of the sale of nonconvertible preferred
securities or nonconvertible trust-preferred securities of the Company.
(b) If the proceeds from such sale(s) are insufficient to
redeem all of the Outstanding Securities, if any, at the Stated Maturity Price,
an Event of Default shall occur.
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, 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
80
73
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less 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 Accelerated 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.
Notices with respect to an Accelerated Redemption shall be provided in
accordance with the provisions of Section 11.01.
All notices of redemption 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,
(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. on any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or,
81
74
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.
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.
82
75
(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;
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
83
76
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 in the case of Senior Debt other than Designated Senior Debt 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 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 the Company shall suffer a default (other than a
payment default) under any Designated Senior Debt and such default continues
beyond the period of grace, if any, specified in the instrument evidencing such
Designated Senior Debt, then, commencing upon the receipt by the Debenture
Trustee (with a copy to the Company) of written notice of such default from the
representative of the holders of such Designated Senior Debt and until such
default shall have been cured or waived or shall have ceased to exist or all
such Designated Senior Debt shall have been paid in full in cash, no direct or
indirect payment or distribution (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made for or in respect of 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, in the case of the
first sentence of the preceding paragraph, the holders of Senior Debt, or, in
the case of the second sentence of the preceding paragraph, the holders of
Designated Senior Debt, or, in either case, 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 Designated Senior
Debt, as the case may be (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
84
77
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 entitled, 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 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 repre-
85
78
sentatives, 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
86
79
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
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.
87
80
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; 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.
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 on behalf of
such holder) to establish that such notice has been given by a holder of such
Senior Debt or a trustee 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
88
81
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.
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 set forth 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,
89
82
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 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 Designated
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 a Convertible
Remarketing which does not fail, on and after the Reset Date through June 15,
2028 (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
90
83
Notification Date, each Security is convertible at the option of the Holder into
1.5179 shares of Common Stock for each $50 in aggregate principal amount of
Securities (the "Initial Conversion Ratio") (equal to a conversion price of
$32.94 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.
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 Ratio. In case a
Security or portion thereof is called for redemption, such conversion right in
respect of the Security or portion so called shall 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
91
84
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. 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 other wise 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 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
92
85
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 cancelation thereof in
accordance with Section 3.06.
(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
93
86
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:
(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
94
87
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 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
95
88
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 aggregate per share amount of
any other cash dividends paid within the 12 months preceding the date
of payment of such cash
96
89
dividends, does not exceed 12 1/2% 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
97
90
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 cur rent 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 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
98
91
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 it considers to be advisable to
avoid or diminish any income tax to holders of Common Stock or rights
to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such
for income tax purposes.
(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 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
99
92
require an increase or decrease of at least 1% in the Applicable
Conversion Price; provided, 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 cancelation 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 lawful
provision shall be made as part of the terms of such Company Transaction whereby
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.
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 make provision in its certificate or
articles of incorporation or other constituent document to establish such right.
Such certificate or articles of incorporation
100
93
or other constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article XIII. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
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 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
101
94
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 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
102
95
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 June 20, 2001 and at any
time on and 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 (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 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
103
96
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.
(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 plan 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 plan involving 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
104
97
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 ten (10) 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, $17.88 (which is an amount
equal to 66-2/3% of the last reported sale price for the Common Stock
on the New York Stock Exchange Composite Tape on such date) 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 $17.88 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 66-2/3% of the Closing Price of the Common
Stock on the Reset Date 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
105
98
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 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
106
99
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.
SECTION 13.11. Trustee Not Responsible for Determining
Conversion Price or Adjustments. Neither the Trustee nor any Conversion Agent
shall at any time be under any duty or responsibility to any Holder 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.
107
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the day and year first above written.
BUDGET GROUP, INC.
by /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman and CEO
THE BANK OF NEW YORK
by /s/ Xxxx Xx Xxxxxx
-------------------------------
Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
108
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 WATER STREET, NEW YORK) TO BUDGET GROUP, INC. 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
INSTITUTIONAL BUYER" (AS DEFINED IN
109
2
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.]
BUDGET GROUP, INC.
HIGH TIDES
Debenture Due 2028
No. $
[CUSIP No. ]
BUDGET GROUP, INC., 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 June 15, 2028.
Interest Payment Dates: March 15, June 15, September 15 and
December 15, commencing
September 15, 1998
Regular Record Dates: the close of business on the first
day of each March, June, September
or December immediately preceding
the applicable Interest Payment
Date
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
-----------------------
(1) Applicable to Global Securities only.
(2) Applicable to certificated Securities only.
110
3
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.
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officers.
Dated: ,
BUDGET GROUP, INC.
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: , THE BANK OF NEW YORK
as Trustee
By:
----------------------------------
Authorized Signatory
111
[FORM OF REVERSE OF SECURITY]
BUDGET GROUP, INC.
HIGH TIDES
Debenture Due 20283(3)
1. Interest. BUDGET GROUP, INC., a Delaware corporation (the
"Company"), is the issuer of this HIGH TIDES Debenture Due 2028 (the "Security")
limited in aggregate principal amount to $309,278,400 (or up to $355,670,150 to
the extent the over-allotment option is exercised in full), issued under the
Indenture hereinafter referred to. The Company promises to pay interest on the
Securities in cash from June 19, 1998 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 March 15, June 15, September 15 and December 15 of each year (each
such date, an "Interest Payment Date"), commencing September 15, 1998, at the
Applicable Rate, plus Additional Payments, if any, until the principal hereof
shall have become due and payable. Each registered Holder of Securities on June
1, 2005 (including any Holder which has tendered or is deemed to have tendered
its Securities for remarketing) shall be paid interest and Additional Payments,
if any, accrued to (but excluding) the Reset Date on June 15, 2005 (or, if such
day is not a Business Day, the next succeeding Business Day). Interest and
Additional Payments, if any, accrued from and after the Reset Date to (but
excluding) September 15, 2005 shall be paid on September 15, 2005 (or, if such
day is not a Business Day, the next succeeding Business Day) to the Person in
whose name each Security is registered on the preceding September 1, subject to
the right of the Company to initiate a Deferral Period. Prior to the Reset Date,
the Applicable Rate shall be 6 1/4% per annum (subject to increase in certain
circumstances upon a Registration Default). On and after the Reset Date, the
Applicable Rate shall be the rate established by the Remarketing Agent in
connection with the Remarketing.
The amount of interest payable for any period will
be computed on the basis of twelve 30-day months and a
-----------------------
(3) 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.
112
5
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 Sums. The Company shall pay to Budget Group
Capital Trust (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 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 term 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 June 15, 2028 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 that shall be payable 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 June 15, 2028 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,
113
6
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 installment, which shall be the close of business
on the first day of March, June, September or December, as applicable,
immediately preceding each Interest Payment Date (the "Regular Record Date"),
commencing September 15, 1998. Each registered Holder of Securities on June 1,
2005 (including any Holder which has tendered or is deemed to have tendered its
Securities for remarketing) shall be paid interest and Additional Payments, if
any, accrued to (but excluding) the Reset Date on June 15, 2005 (or, if such day
is not a Business Day, the next succeeding Business Day). Interest and
Additional Payments, if any, accrued from and after the Reset Date to (but
excluding) September 15, 2005 shall be paid on September 15, 2005 (or, if such
day is not a Business Day, the next succeeding Business Day) to the Person in
whose name each Security is registered on the preceding September 1, subject 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
114
7
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.
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 June 19, 1998 (the "Indenture"), between the Company and
The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the 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
$309,278,400
115
8
in aggregate principal amount (or up to $355,670,150 to the extent the
over-allotment option 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 rate,
and in the coin or currency, herein pre scribed 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 solely from the proceeds of a
Common Stock Offering (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 June 20, 2001
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 June 15:
Price Per $50
Principal
Year Amount
---- -------------
2002................................... $51.5625
2003................................... 51.0417
2004................................... 50.5208
2005................................... 50.00
and (ii) after the Reset Date, in accordance with the Term Call protections, if
any, established in connection with the Remarketing. The Company may make an
Optional Redemption on an accelerated basis (an "Accelerated Redemption")
whenever, on an Optional Redemption Notification Date, the Closing Price of the
Class A Common Stock of the Company, par value $.01 per share ("Class A Common
Stock"), on the New York Stock Exchange Composite Tape for each of the five
trading days prior to such Optional Redemption Notification Date was equal to or
greater than 125% of the Applicable Conversion Price.
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
116
9
first-class mail, postage prepaid, within 90 days following the closing of the
applicable Common Stock Offering (the "Optional Redemption Notification Date")
to each Holder of Securities to be redeemed, at such Holder's address appearing
in the Security Register; provided that in the case of an Accelerated
Redemption, the Optional Redemption Notice must be received by such Holders not
later than the Business Day immediately following the Optional Redemption
Notification Date. 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 Class A Common Stock at the Applicable Conversion Ratio prior to the
Optional Redemption Date in compliance with Article XIII of the Indenture.
"Optional Redemption Date" means the date which is (i) 20 to 40 days following
the Optional Redemption Notification Date (or if such date is not a Business
Day, the next succeeding Business Day) or (ii) in the event that the Company
decides to make an Accelerated Redemption, five Business Days following the
Optional Redemption Notification Date.
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 pro rata 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
cancelation 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 40 days but not more than 60 days
prior to June 15, 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 Class A 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 May 20, 2005 (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 June 15, 2005 (or, if such day is not a
Business Day, the next succeeding Business Day) or such earlier day as may be
determined by the Remarketing Agent, in its sole discretion, for settlement of a
successful Remarketing (the "Reset
117
10
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
or, in the event of a Failed Final Remarketing or upon the occurrence of certain
Market Events (as such term is defined in the Remarketing Agreement), 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
Company shall be required to redeem the Securities in whole, and not in part, on
the Reset Date at 101% of the aggregate principal amount thereof, plus accrued
and unpaid interest, including Additional Payments, if any, to the Redemption
Date. The failure by the Company to redeem the Securities in whole on the Reset
Date upon the occurrence of a Failed Final Remarketing shall constitute an Event
of Default.
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 Failed Final
Remarketing or a Tax Event. In case of a redemption in connection with a Failed
Final Remarketing or 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.
11. Mandatory Redemption. The Securities will mature, and the
Company must redeem the securities in whole and not in part, on June 15, 2028
with the proceeds of the sale of nonconvertible preferred or nonconvertible
trust - preferred Securities of the Company at a price equal to the aggregate
principal amount thereof, plus accrued and unpaid interest, including Additional
Payments, if any, to the Redemption Date. The failure of the Company to redeem
all Outstanding Securities on June 15, 2028 with the proceeds of
118
11
the sale of nonconvertible preferred and nonconvertible trust-preferred
securities of the Company 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 in whose name this Security is
registered at the close of business on such record date.
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 obligations of the Company under
the Senior Credit Agreement, including, without limitation, principal
(including, without limitation, reimbursement obligations in respect of letters
of credit (whether or not drawn) and obligations to cash collateralize letters
of credit), premium (if any), interest (including, without limitation, interest
accruing subsequent to the filing of, or which would have accrued but for the
filing of, a petition for bankruptcy, whether or not such interest is an
allowable claim in such bankruptcy proceeding), fees, indemnifications, expenses
and other amounts payable pursuant thereto, (ii) the principal of, and premium
and interest, if any, on all indebtedness of the Company for money borrowed,
whether outstanding on the date of execution of the Indenture or thereafter
created, assumed or incurred, (iii) all obligations to make payment pursuant to
the terms of financial instruments, such as (a) securities contracts and
foreign currency exchange contracts, (b) derivative instruments, such as swap
agreements
119
12
(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
both (ii) and (iii) 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, (iv) and indebtedness or obligations of others of the kind
described in (i), (ii) and (iii) 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, (c)
any Debt of the Company to any of its subsidiaries, (d) Debt to any employee of
the Company, and (e) Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the Holders of the
Securities as a result of the subordination provisions of the Indenture would be
greater than such payments otherwise would have been as a result of any
obligation of such holders of such Debt to pay amounts over to the obligees on
such trade accounts payable or accrued liabilities arising in the ordinary
course of business as a result of subordination provisions to which such Debt is
subject.
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 which
does not fail, from and after the Reset Date through June 15, 2028 (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 Class A Common Stock. Prior to the Reset Date, each Security
is convertible, at the option of the Holder into 1.5179 shares of Class A Common
Stock for each $50 in aggregate principal amount of Securities (equivalent to a
conversion price of $32.94 per share of Class A 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 Class A Common Stock. The conversion ratio and
120
13
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. 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 Class A Common Stock.
16. Registration Rights. The Holders of the Preferred
Securities, the Securities and the Guarantee and the shares of Class A Common
Stock of the Company issuable upon conversion of the Securities (collectively,
the "Registrable Securities") are entitled to the benefits of a Registration
Rights Agreement, dated as of June 19, 1998, among the Company, the Trust and
the Initial Purchasers (the "Registration Rights Agreement"). Pursuant to the
Registration Rights Agreement the Company has agreed for the benefit of the
holders of the Registrable Securities that they will (i) at the Company's sole
expense, prior to August 18, 1998 file a shelf registration statement (the
"Shelf Registration Statement") with the Commission with respect to resales of
the Registrable Securities, (ii) use their best efforts to cause such Shelf
Registration Statement
121
14
to be declared effective under the Securities Act prior to October 19, 1998 and
(iii) use their best efforts to maintain such Shelf Registration Statement
continuously effective and useable for two years or such other period as shall
be required under Rule 144(k) of the Securities Act or any successor rule
thereto or, if earlier, such time as all of the applicable Registrable
Securities have been sold thereunder (except that the Company will be permitted
to suspend the use of the Shelf Registration Statement during certain periods
under certain circumstances specified in the Registration Rights Agreement). If
the Company fails to comply with any of clauses (i) through (iii) above, subject
to certain exceptions provided in the Registration Rights Agreement, (a
"Registration Default") then, at such time, the Applicable Rate will increase by
50 basis points (.50%). Such increase will remain in effect from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured, on which date the
interest rate on the Securities will revert to the interest rate originally
borne by the Securities.
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 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. Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary. In the event of redemption or
conversion of this Security in part only, a new Security or Securities for the
unredeemed or unconverted
122
15
portion hereof will be issued in the name of the Holder hereof upon the
cancelation hereof.
18. Persons Deemed Owners. Except as provided in Section 3
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; and provided further that any such declaration will not be effective
until the earlier to occur of (i) ten business days after receipt by the Company
and the administrative agent under the Senior Credit Agreement of written notice
of such declaration and (ii) acceleration of obligations under the Senior Credit
Agreement. 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 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
123
16
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
(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; and provided further that the payment of principal and interest on
such Securities shall remain subordinated to the extent provided in the
Indenture.
In the case of an Event of Default, the Holders of a majority
in principal amount of the Securities then Outstanding by written notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration.
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 compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the
124
17
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.
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).
The Company will furnish to any Holder of the Securities upon
written request and without charge a copy of the Indenture. Request may be made
to:
Budget Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Secretary
125
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:(4)
----------------------------------
[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:
---------------------------
(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.)
126
2
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:(5)
------------------------------------- ---------------------------
Signature must be guaranteed Signature
--------------------------------------------------------------------------------
-------------
(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.)
127
3
[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 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]
128
(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:
Amount of in
crease in Principal
Amount of this
Global Security Principal Amount Signature of
including upon Amount of decrease of this Global authorized officer
exercise of in Principal Security following of Trustee or
over-allotment Amount of this such decrease or Securities
Date Made option Global Security increase Custodian
-------------------------------------------------------------------------------------------------------------
129
ELECTION TO CONVERT
To: Budget Group, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below designated,
into Class A Common Stock of Budget Group, Inc. 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 Registration Rights Agreement relating to the Class A 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:(6)
---------------------------
-------------
(6) (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.)
