EXHIBIT 4.4
HOMEBASE, INC.,
ISSUER
AND
STATE STREET BANK AND
TRUST COMPANY OF CALIFORNIA, N.A.,
TRUSTEE
____________________
INDENTURE
Dated as of November 10, 1997
____________________
$100,000,000
53% CONVERTIBLE SUBORDINATED NOTES
DUE NOVEMBER 1, 2004
TABLE OF CONTENTS
Page
RECITALS........................................................................................ 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions...................................................................... 1
Section 1.2 Compliance Certificates and Opinions
Section 1.3 Form of Documents Delivered to Trustee........................................... 10
Section 1.4 Acts of Holders of Securities.................................................... 11
Section 1.5 Notices, Etc..................................................................... 13
Section 1.6 Notice to Holders of Securities; Waiver.......................................... 14
Section 1.7 Effect of Headings and Table of Contents......................................... 14
Section 1.8 Successors and Assigns........................................................... 14
Section 1.9 Separability Clause.............................................................. 15
Section 1.10 Benefits of Indenture............................................................ 15
Section 1.11 Governing Law.................................................................... 15
Section 1.12 Legal Holidays................................................................... 15
Section 1.13 Conflict with Trust Indenture Act................................................ 15
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.................................................................. 16
Section 2.2 Form of Face of Security......................................................... 17
Section 2.3 Form of Reverse of Security...................................................... 21
Section 2.4 Form of Trustee's Certificate of Authentication.................................. 28
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.................................................................. 29
Section 3.2 Denominations.................................................................... 30
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 3.3 Execution, Authentication, Delivery and Dating................................... 30
Section 3.4 Temporary Securities............................................................. 30
Section 3.5 Registration, Registration of Transfer and Exchange;
Restrictions on Transfer....................................................... 31
Section 3.6 Xxxxxxxxx, Destroyed, Lost or Stolen Securities.................................. 36
Section 3.7 Payment of Interest, Interest Rights Preserved................................... 37
Section 3.8 Persons Deemed Owners............................................................ 38
Section 3.9 Cancellation..................................................................... 38
Section 3.10 Computation of Interest.......................................................... 39
Section 3.11 CUSIP Numbers.................................................................... 39
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.......................................... 39
Section 4.2 Application of Trust Money....................................................... 40
ARTICLE V
REMEDIES
Section 5.1 Events of Default................................................................ 41
Section 5.2 Acceleration of Maturity; Rescission and Annulment............................... 42
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.................. 44
Section 5.4 Trustee May File Proofs of Claim................................................. 44
Section 5.5 Trustee May Enforce Claims Without Possession of Securities...................... 45
Section 5.6 Application of Money Collected................................................... 46
Section 5.7 Limitation on Suits.............................................................. 46
Section 5.8 Unconditional Right of Holders to Receive Principal and Interest and to Convert.. 47
Section 5.9 Restoration of Rights and Remedies............................................... 47
Section 5.10 Rights and Remedies Cumulative................................................... 47
Section 5.11 Delay or Omission Not Waiver..................................................... 48
Section 5.12 Control by Holders of Securities................................................. 48
Section 5.13 Waiver of Past Defaults.......................................................... 48
Section 5.14 Undertaking for Costs............................................................ 49
Section 5.15 Waiver of Stay or Extension Laws................................................. 49
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.............................................. 49
Section 6.2 Notice of Defaults............................................................... 50
Section 6.3 Certain Rights of Trustee........................................................ 51
Section 6.4 Not Responsible for Recitals or Issuance of Securities........................... 52
Section 6.5 May Hold Securities, Act as Trustee Under Other Indentures....................... 52
Section 6.6 Money Held in Trust.............................................................. 52
Section 6.7 Compensation and Indemnification of Trustee and Its Prior Claims................. 52
Section 6.8 Corporate Trustee Required; Eligibility.......................................... 53
Section 6.9 Resignation and Removal; Appointment of Successor................................ 54
Section 6.10 Acceptance of Appointment by Successor........................................... 55
Section 6.11 Xxxxxx, Conversion, Consolidation or Succession to Business...................... 56
Section 6.12 Authenticating Agent............................................................. 57
Section 6.13 Disqualification; Conflicting Interests.......................................... 58
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders........................ 58
Section 7.2 Preservation of Information; Communications to Holders........................... 59
Section 7.3 Reports by the Company........................................................... 59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms............................. 60
Section 8.2 Successor Substituted............................................................ 60
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders of Securities................. 61
Section 9.2 Supplemental Indentures with Consent of Holders of Securities.................... 62
Section 9.3 Trustee Protected................................................................ 63
Section 9.4 Execution of Supplemental Indentures............................................. 63
Section 9.5 Effect of Supplemental Indentures................................................ 63
Section 9.6 Reference in Securities to Supplemental Indentures............................... 63
Section 9.7 Notice of Supplemental Indentures................................................ 64
ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
Section 10.1 Purposes for Which Meetings May Be Called........................................ 64
Section 10.2 Call, Notice and Place of Meetings............................................... 64
Section 10.3 Persons Entitled to Vote at Meetings............................................. 65
Section 10.4 Quorum; Action................................................................... 65
Section 10.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.............. 65
Section 10.6 Counting Votes and Recording Action of Meetings.................................. 66
ARTICLE XI
COVENANTS
Section 11.1 Payment of Principal and Interest................................................ 67
Section 11.2 Maintenance of Offices or Agencies............................................... 67
Section 11.3 Money for Security Payments To Be Held in Trust.................................. 68
Section 11.4 Corporate Existence.............................................................. 69
Section 11.5 Maintenance of Properties........................................................ 69
Section 11.6 Compliance with Laws............................................................. 69
Section 11.7 Payment of Taxes and Other Claims................................................ 70
Section 11.8 Delivery of Certain Information.................................................. 70
Section 11.9 Statement by Officers as to Default.............................................. 70
Section 11.10 Resale of Certain Securities..................................................... 71
Section 11.11 Waiver of Certain Covenants...................................................... 71
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 11.12 Registration Rights.............................................................. 71
Section 11.13 Book-Entry System................................................................ 72
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.1 Right of Redemption.............................................................. 73
Section 12.2 Applicability of Article......................................................... 73
Section 12.3 Election to Redeem; Notice to Trustee............................................ 73
Section 12.4 Selection by Trustee of Securities to be Redeemed................................ 73
Section 12.5 Notice of Redemption............................................................. 74
Section 12.6 Deposit of Redemption Price...................................................... 74
Section 12.7 Securities Payable on Redemption Date............................................ 75
ARTICLE XIII
CONVERSION OF SECURITIES
Section 13.1 Conversion Privilege and Conversion Rate......................................... 75
Section 13.2 Exercise of Conversion Privilege................................................. 76
Section 13.3 Fractions of Common Stock........................................................ 78
Section 13.4 Adjustment of Conversion Rate.................................................... 78
Section 13.5 Notice of Adjustments of Conversion Rate......................................... 83
Section 13.6 Notice of Certain Corporate Action............................................... 83
Section 13.7 Company to Reserve Common Stock.................................................. 84
Section 13.8 Taxes on Conversions............................................................. 84
Section 13.9 Covenant as to Common Stock...................................................... 84
Section 13.10 Cancellation of Converted Securities............................................. 85
Section 13.11 Provision in Case of Consolidation, Merger or Conveyance of Assets............... 85
Section 13.12 Responsibility of Trustee for Conversion Provisions.............................. 86
ARTICLE XIV
SUBORDINATION
Section 14.1 Securities Subordinate to Senior Debt............................................ 86
Section 14.2 Payment Over of Proceeds Upon Dissolution, Etc................................... 87
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 14.3 No Payment When Senior Debt in Default........................................... 88
Section 14.4 Payment Permitted If No Default.................................................. 89
Section 14.5 Subrogation to Rights of Holders of Senior Debt.................................. 89
Section 14.6 Provisions Solely to Define Relative Rights...................................... 89
Section 14.7 Trustee to Effectuate Subordination.............................................. 90
Section 14.8 No Waiver of Subordination Provisions............................................ 90
Section 14.9 Notice to Trustee................................................................ 90
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent................... 91
Section 14.11 Trustee Not Fiduciary for Holders of Senior Debt................................. 91
Section 14.12 Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights..... 91
Section 14.13 Article Applicable to Paying Agents.............................................. 92
Section 14.14 Subsidiaries..................................................................... 92
Section 14.15 Rescission....................................................................... 92
Section 14.16 Payment.......................................................................... 92
ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THEHOLDER UPON A CHANGE IN CONTROL
Section 15.1 Right to Require Repurchase...................................................... 93
Section 15.2 Notices; Method of Exercising Repurchase Right, Etc.............................. 93
Section 15.3 Certain Definitions.............................................................. 97
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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EXHIBIT 4.4
INDENTURE, dated as of November 10, 1997, between HOMEBASE, INC., a
Delaware corporation (herein called the "Company"), and STATE STREET BANK AND
TRUST COMPANY OF CALIFORNIA, N.A., a national banking association, as Trustee
hereunder (herein called the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of its 53%
Convertible Subordinated Notes due November 1, 2004 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION I.1 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) Unless the context otherwise requires, any reference to an
"Article" or a "Section," or to an "Annex," refers to an Article or Section
of, or an Annex attached to, this Indenture, as the case may be;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States prevailing at the time of any relevant
computation hereunder; 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; provided, however that where such
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words are used in any form of Security, form of notice or form of
certificate, such words shall refer only to the particular form of
Security, form of notice or form of certificate, as the case may be, in
which such words are contained.
"Act," when used with respect to any Holder of a Security, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 3.5.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of Euroclear and CEDEL, and of the Depositary for such Security, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.12 to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Board of Directors" means the board of directors of the Company, or any
committee of the board of directors of the Company, empowered to act for the
Company, as the case may be, with respect to this Indenture.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
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"Business Day" means, with respect to any particular place of payment,
place of conversion or any other place, as the case may be, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any such day on which
banking institutions in The City of New York, New York or in such particular
place are authorized or obligated by law or executive order to close. If any
day on which any delivery, request, surrender, payment or other action is
required or permitted hereunder to be taken by or on behalf of a Holder is not a
Business Day in any place where such action is permitted hereunder to be taken,
then such actions may be taken at such or any other permitted place on the next
succeeding Business Day at such place with the same force and effect as if taken
at the same time on such day that is not a business day at such place.
"CEDEL" means Cedel Bank, societe anonyme (or any successor securities
clearing agency).
"Change in Control" has the meaning specified in Section 15.3.
"Closing Price Per Share" means, with respect to the Common Stock of the
Company, for any day, the reported last sales price regular way per share on
such day or, in case no such reported sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in either case (i) on
the principal (as determined by the Company's Board of Directors) national
securities exchange on which the Common Stock is listed or admitted to trading
or (ii) if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or (iii) if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under applicable law, then
the body performing such duties at such time.
"Common Stock" means the Common Stock, par value $1.00 per share, of the
Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1311, shares issuable on conversion or
repurchase of Securities shall include only shares of Common Stock or shares of
any class or classes of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any time there shall be
more than one such resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and the shares of each such
class then so issuable 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.
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"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 any one of its Chairman of the Board, its
Chief Executive Officer, its President, or any Vice President, and by any one of
its Chief Financial Officer, Treasurer, any Assistant Treasurer, its Secretary
or any Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 13.11.
"Conversion Agent" means any Person authorized by the Company to convert
Securities in accordance with Article XIII. The Company has initially appointed
the Trustee as Conversion Agent.
"Conversion Price" and "Conversion Rate" have the meanings specified in
Section 13.1 hereof, as adjusted in accordance with Section 13.4.
"Conversion Securities" means the securities delivered on conversion of
Securities (or any securities successor thereto), together with any securities
successor thereto to those so delivered on conversions.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered (which
at the date of this Indenture is located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxx
Xxxxxxx, XX, 00000 Attention: Corporate Trust Administration (HomeBase, Inc. __%
Convertible Subordinated Notes Due 2004)).
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means DTC until a successor depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean such successor Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including any successor or amendatory statutes.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934 (including
any successor act thereto), as it may be amended from time to time, and (unless
the context otherwise requires) includes the rules and regulations of the
Commission promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4(g).
"Global Security" means any of the Restricted Global Security and the
Regulation S Global Security.
"Holder" means a Person in whose name such Security is registered in the
Security Register.
"Indebtedness" means obligations (other than nonrecourse obligations) of,
or guaranteed or assumed by, the Company for borrowed money, including
obligations evidenced by bonds, debentures, notes or other similar instruments
and reimbursement and cash collateralization of letters of credit, bankers'
acceptances, interest rate hedge and currency hedge agreements.
"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 Annexes
attached to this instrument.
"Initial Purchaser" means Prudential Securities Incorporated.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Liquidated Damages" has the meaning specified in Section 11.12.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, exercise of the repurchase right set forth in Article XV or
otherwise.
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"Non-Conversion Period" has the meaning specified in Section 2.3.
"Non-Electing Share" has the meaning specified in Section 13.11.
"Notice of Default" has the meaning specified in Section 5.1.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer, the Controller, an
Assistant Treasurer, an Assistant Controller, the Secretary, an Assistant
Secretary or any Vice President of the Company.
"Officers' Certificate" means a written certificate signed by any one of
the Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or any Vice President of the Company and by any one of the
Treasurer, the Controller, an Assistant Treasurer, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee; provided, however, that, for purposes of Section 11.9, an "Officers'
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Certificate" means a written certificate signed by the principal executive,
financial or accounting officer of the Company and any one of the other Officers
referred to above and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company and who shall be reasonably acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
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(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for the payment or redemption of which 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
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be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 3.6 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;
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provided, however, that in determining whether the Holders of the requisite
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principal amount of Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in conclusively relying upon any such determination as to the presence of a
quorum or upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or other legal entity 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 3.6 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.
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"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.
"Registration Default" has the meaning specified in Section 11.12.
"Registration Rights Agreement" has the meaning specified in Section 11.12.
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"Regular Record Date" for interest payable in respect of any Security on
any Interest Payment Date means the April 15 or October 15 (whether or not a
Business Day) next preceding the relevant Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section 2.1.
"Repurchase Date" has the meaning specified in Section 15.1.
"Repurchase Price" has the meaning specified in Section 15.1.
"Responsible Officer," when used with respect to the Trustee, shall mean
any officer of the Trustee within the Corporate Trust Office including any
Senior Vice President, Assistant Vice President, Trust Officer, Secretary,
Assistant Secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Restricted Global Security" has the meaning specified in Section 2.1.
"Restricted Period" has the meaning specified in Section 2.1.
"Restricted Securities" has the meaning specified in Section 2.1.
"Rule 144" means Rule 144 under the Securities Act (including any successor
rule thereto), as the same may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 11.8.
"Securities" has the meaning ascribed to it in the first paragraph under
the caption "Recitals."
"Securities Act" means the Securities Act of 1933 (including any successor
act thereto), as it may be amended from time to time, and (unless the context
otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
-8-
"Senior Credit Facility" means that certain Credit Agreement dated as of
July 9, 1997 by and among the Company and the financial institutions party
thereto, as Lenders, and the First National Bank of Chicago, as agent, as
amended.
"Senior Debt" means the principal of (and premium, if any) and interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, the following, whether direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
outstanding on the date of the Indenture or thereafter created, incurred or
assumed: (a) indebtedness of the Company for money borrowed or evidenced by
credit or loan agreement, bonds, debentures, notes or similar instruments, (b)
all obligations of the Company evidenced by a note or similar instrument or
written agreement given in connection with the acquisition of any businesses,
properties or assets, including securities, (c) obligations of the Company as
lessee under leases capitalized on the balance sheet of the lessee under
generally accepted accounting principles, (d) obligations of the Company under
interest rate and currency swaps, caps, floors, collars, hedge agreements,
forward contracts, or similar agreements or arrangements intended to protect the
Company against fluctuations in interest or currency exchange rates or commodity
prices, (e) all reimbursement obligations of the Company with respect to letters
of credit, bankers' acceptances or similar facilities issued for the account of
the Company, (f) indebtedness of others of the kinds described in the preceding
clauses (a), (b), (c), (d) and (e) that the Company has assumed, guaranteed or
otherwise assured the payment thereof, directly or indirectly, and/or (g)
deferrals, renewals, extensions and refundings of, or bonds, debentures, notes
or other evidences of indebtedness issued in exchange for, or amendments,
modifications or supplements to, or covenants and other obligations of the
Company in connection with, the indebtedness described in the preceding clauses
(a) through (f) whether or not there is any notice to or consent of the Holders
of the Securities; except (i) indebtedness and advances among the Company and
its Subsidiaries; and (ii) any particular indebtedness, deferral, renewal,
extension or refunding, if it is expressly stated in the governing terms or in
the assumption thereof that the indebtedness involved is not Senior Debt.
"Shelf Registration Statement" has the meaning specified in Section 11.12.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition,
-9-
"voting stock" means stock or other similar interests which ordinarily has or
have voting power for the election of directors, or persons performing similar
functions, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Trading Days" means (i) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business or (ii) if the Common Stock is not
listed or admitted for trading on any national securities exchange, days on
which trades may be made on the Nasdaq National Market or any similar system of
automated dissemination of quotations of securities prices on which the Common
Stock is quoted or (iii) if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market or
similar system, days on which the Common Stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock is available.
"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 United States Trust Indenture Act of 1939
(including any successor act thereto), as it may be amended from time to time,
and (unless the context otherwise requires) includes the rules and regulations
of the Commission thereunder.
"United States person" means a citizen or resident of the United States, a
domestic partnership, a domestic corporation or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source.
"Unrestricted Securities" has the meaning specified in Section 2.1.
"Vice President," when used with respect to the Company, means any Vice
President, whether or not designated by a number or a word or words added before
or after the title "Vice President."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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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 such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO THE 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.
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 1.4 ACTS OF HOLDERS OF SECURITIES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities may be embodied in and evidenced by (1) one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent or proxy duly appointed in writing, (2) the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article X or (3) a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders of Securities signing such instrument or instruments
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and so voting at such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 6.1) conclusive in favor of the Trustee and the Company if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 10.6.
(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.
(c) The ownership of Securities shall be proven by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may set any day as a 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 provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
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and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. 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 take the relevant action, 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 applicable 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
Company 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 on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 1.6.
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(f) 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 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(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 applicable 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 (whereupon the record date
previously set shall automatically and without any action by any Person be
canceled and of no effect), nor shall anything in this paragraph be construed to
render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities on 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 1.6.
(g) With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
--------
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 1.6, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto that
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder 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 part of such principal amount.
SECTION 1.5 NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act of Holders of Securities or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
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(1) the Trustee by any Holder of Securities or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee and received at its Corporate Trust
Office, Attention: Corporate Trust Administration (HomeBase, Inc. 53%
Convertible Subordinated Notes Due 2004), or
(2) the Company by the Trustee or by any Holder of Securities shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing, mailed, first-class postage prepaid, or
telexed or telecopied and confirmed by mail, first-class postage prepaid,
or delivered by hand or overnight courier, addressed to the Company at 0000
Xxxxxxxxx Xxxxx, telephone no.: (000) 000-0000; telecopy no.: (714) 442-
5127, Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise provided herein, where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his registered
address as recorded in the Security Register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Holder 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 1.7 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.
-14-
SECTION 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its respective successors and assigns, whether so expressed or not.
SECTION 1.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or 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 1.10 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 and
assigns hereunder, the holders of Senior Debt of the Company and the Holders of
Securities and, solely with respect to this Article I and Sections 11.8, 13.8,
and 13.9, the holders of Conversion Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.
This Article I and Sections 11.8, 13.8 and 13.9 shall not be amended or
modified, and neither compliance by the Company with, nor any default by it
under, such Article or any such Sections, shall be waived, in any manner that
adversely affects the interest of any holder of a Conversion Security at the
time outstanding without such Xxxxxx's consent.
SECTION 1.11 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA.
SECTION 1.12 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date or Stated Maturity of any Security or the last day on which a Holder of a
Security has a right to convert his Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of principal of, premium, if any, or interest (including Liquidated
Damages) on, or the payment of the Repurchase Price (whether the same is payable
in cash or in shares of Common Stock) with respect to, or delivery for
conversion of, such Security need not be made on or by such day, but may be made
on or by the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date, Redemption Date, Repurchase Date, or at the
Stated Maturity or by such last day for conversion, as the case may be;
provided, however, that in the case that payment is made on such succeeding
-------- -------
Business Day, no interest shall accrue on the amount so payable for the period
-15-
from and after such Interest Payment Date, Redemption Date, Repurchase Date,
Stated Maturity or last day for conversion, as the case may be.
SECTION 1.12 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 (or would be required to be a part of and govern this
Indenture if this Indenture were required to be qualified under the Trust
Indenture Act), 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.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities shall be in substantially the forms set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary thereof, the Code and regulations thereunder,
or as may, consistently herewith, be determined by the Officers executing such
Securities, as evidenced by their execution thereof. The Company shall approve
the form of the Securities and any notation, legend or endorsement on the
Securities.
Any definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed or quoted, as the case may be, all as determined by the Officers
executing such Securities as evidenced by their execution thereof.
In certain cases described elsewhere herein, the legends set forth in the
first four paragraphs of Section 2.2 may be omitted from Securities issued
hereunder.
Securities offered and sold in their initial distribution in reliance on
Regulation S shall be initially represented by one or more Regulation S Global
Notes (the "Regulation S Global Security") issued in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 2.2 and 2.3, with such applicable legends as are provided for in
Section 2.2. Such Regulation S Global Security shall be registered in the name
of the Depositary or its nominee and deposited with the Trustee, as custodian
for the Depositary,
-16-
duly executed by the Company and authenticated by the Trustee as hereinafter
provided, for credit to the respective accounts at the Depositary of the
depositories for Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of Euroclear or CEDEL. Until such time as the Restricted Period shall
have terminated, investors may hold beneficial interests in such global Notes
only through Euroclear and CEDEL, unless delivery of such beneficial interest
shall be made through the Restricted Global Note in accordance with the
certification requirements discussed below in Section 3.5(b)(3). After such
time as the Restricted Period shall have terminated, such certification
requirements shall no longer be required for such transfers. As used herein,
the term "Restricted Period" means the period up to (but not including) the 40th
day following the later of (i) the day on which the Securities are first offered
to persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the last original issuance date of the Securities. The
Regulation S Global Security following the Restricted Period and all other
Securities that are not Restricted Securities shall collectively be referred to
herein as the "Unrestricted Securities."
Securities offered and sold in their initial distribution in reliance on
Rule 144A shall initially be issued in the form of one or more Global Securities
(collectively, the "Restricted Global Security") in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 2.2 and 2.3, with such applicable legends as are provided for in
Section 2.2, except as otherwise permitted herein. Such Restricted Global
Security shall be registered in the name of the Depositary or its nominee and
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may be increased or
decreased from time to time by adjustments made on the records of the Trustee,
as custodian for the Depositary, in connection with a corresponding decrease or
increase in the aggregate principal amount of the Regulation S Global Security,
as hereinafter provided. The Restricted Global Security and all other
Securities evidencing the debt, or any portion of the debt, initially evidenced
by such Global Security, other than Securities transferred or exchanged upon
certification as provided in Section 3.5(b)(2) or (4), shall collectively be
referred to herein as the "Restricted Securities."
The Securities will be issued only in registered form. The Securities will
be issued in minimum denominations of $1,000, as provided in Section 3.2.
SECTION 2.2 FORM OF FACE OF SECURITY.
THE SECURITY EVIDENCED HEREBY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
THEIR CONVERSION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
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144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (4) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501 (A) (1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES."
-18-
HOMEBASE, INC.
5 1/4% CONVERTIBLE SUBORDINATED NOTES
DUE NOVEMBER 1, 2004
No. _________ $
[Registered Global Security - CUSIP No. 43738E AA 6]
[Registered Regulation S Global Security - CUSIP No. U4368W AA 2]
HOMEBASE, INC., a Delaware corporation (herein called the "Company," which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to _______________,
or registered assigns, the principal sum of _____________ U.S. Dollars, [IF THIS
SECURITY IS A GLOBAL SECURITY, THEN INSERT -- (which principal amount may from
time to time be increased or decreased to such other principal amounts (which,
taken together with the principal amounts of all other Outstanding Securities,
shall not exceed $115,000,000 in the aggregate at any time) by adjustments made
on the records of the Trustee hereinafter referred to in accordance with the
Indenture)] on November 1, 2004, and to pay interest thereon from November 17,
1997 or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, semi-annually in arrears on May 1
and November 1 in each year, commencing on May 1, 1998, and at Maturity at the
rate of 5 1/4% per annum, until the principal hereof is paid or made available
for payment, provided that any amount of such principal or interest that is
--------
overdue shall bear interest at the rate of 5 1/4% per annum (to the extent that
payment of such interest shall be legally enforceable), from the date such
amount is due until it is paid or made available for payment, and such interest
on any overdue amount shall be payable on demand. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, provided notice thereof shall have been given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of and interest on this Security will be made in
immediately available funds and 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, at the office or agency of the
-19-
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, provided, however, that payment of interest may, at the option of the
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Company, be made by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register. If this Security is a
Global Security, then each such payment will be made in accordance with the
procedures of the Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, 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 Security to be duly
executed under its corporate seal.
HOMEBASE, INC.
[Corporate Seal]
By____________________________
Title:
Attest:
______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:___________________________
Authorized Signatory
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SECTION 2.3 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its "5 1/4% Convertible Subordinated Notes due November 1,
2004" (herein called the "Securities"), limited in aggregate principal amount to
$115,000,000, issued and to be issued under an Indenture, dated as of November
10, 1997 (herein called the "Indenture") between the Company and State Street
Bank and Trust Company of California, N.A., as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which the Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the Holders of Senior Debt of
the Company and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
No sinking fund is provided for in the Securities. The Securities may not
be redeemed at the option of the Company prior to November 1, 2000. Thereafter,
the Securities may be redeemed at the option of the Company, in whole or in
part, at the Redemption Prices set forth below: Such Redemption Prices
(expressed as a percentage of principal amount) are as follows for the 12-month
period beginning on November 1 of the following years:
Year Redemption Price
---- ----------------
2000......................... 103.15%
2001......................... 102.10
2002......................... 101.05
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date provided that
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
Notice of redemption (which notice shall be irrevocable) will be given by
first-class mail to Holders of Securities at their registered addresses as
recorded in the Security Register. Notice will be given not more than 60 nor
less than 30 days prior to the Redemption Date, as provided in the Indenture.
In any case where the due date for the payment of the principal of,
premium, if any, or interest (including Liquidated Damages) on, any Security or
the last day on which a Holder of a Security has a right to convert his Security
shall be at any place of payment or place of conversion, as the case may be, a
day on which banking institutions at such place of payment or place of
conversion are authorized or obligated by law or executive order to close, then
payment of principal of, premium, if any, or interest (including Liquidated
Damages) on, or
-21-
delivery for conversion of such Security need not be made on or by such date at
such place but may be made on or by the next succeeding day at such place which
is not a day on which banking institutions are authorized or obligated by law or
executive order to close, with the same force and effect as if made on the date
for such payment or the date fixed for redemption or repurchase, or at the
Stated Maturity or by such last day for conversion, and no interest shall accrue
for the period after such date.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at his option, at any time on or after the
90th day following the last original issue date of the Securities (the "Non-
Conversion Period") and prior to the close of business on November 1, 2004, or
in case this Security is called for redemption or the Holder hereof has
exercised its right to require the Company to repurchase this Security, then in
respect of this Security until and including, but (unless the Company defaults
in making the payment due upon redemption or repurchase, as the case may be) not
after, the close of business on the Redemption Date or the Repurchase Date, as
the case may be, to convert this Security into newly issued fully paid and
nonassessable shares of Common Stock of the Company at an initial Conversion
Rate equal to 97.815 shares of Common Stock per $1,000 principal amount of
Securities (or at the current adjusted Conversion Rate if an adjustment has been
made as provided in the Indenture) by surrender of this Security, and also a
duly executed conversion notice, substantially in the form provided in Annex A
of the Indenture (including the tax certification contained in such notice), to
the Company, subject to any laws or regulations applicable thereto and subject
to the right of the Company to terminate the appointment of the Conversion Agent
(as defined below), at the office or agency of the Company in The City of New
York or at such other offices or agencies outside the United States that the
Company may designate (each a "Conversion Agent"). Any Security surrendered for
conversion during a Record Date Period (except Securities called for redemption
on a Redemption Date or to be repurchased on a Repurchase Date during, in each
case, such period) must be accompanied by payment of an amount equal to the
interest payable on the Interest Payment Date relating to such Record Date
Period on the principal amount of such Security being surrendered for
conversion, and the interest payable in respect of such Security on such
Interest Payment Date shall be paid to the Holder of such Security as of the
Regular Record Date relating to such Record Date Period. The interest payable
on such Interest Payment Date with respect to any Security which has been called
for redemption on a Redemption Date, or is repurchaseable on a Repurchase Date,
occurring, in either case, during a Record Date Period, which Security is
surrendered for conversion during such Record Date Period, shall be paid to the
Holder of such Security being converted in an amount equal to the interest that
would have been payable on such Security if such Security had been converted as
of the close of business on such Interest Payment Date. Interest payable in
respect of any Security surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such Security as of the next
preceding Regular Record Date, notwithstanding the exercise of the right of
conversion.
The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which
-22-
this Security is convertible and such delivery will be deemed to satisfy the
Company's obligation to pay the principal amount of this Security. No fractions
of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the nearest
1/100th of a share) the Company shall pay a cash adjustment as provided in the
Indenture, or alternatively the Company shall round up the conversion
transaction to the next higher whole share. In addition, the Indenture provides
that in case of certain consolidations or mergers to which the Company is a
party or the sale or transfer of all or substantially all of the assets of the
Company, the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which this Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer (assuming such holder of Common Stock failed to exercise any rights of
election and received per share the kind and amount received per share by at
least a plurality of Non-Electing Shares). Adjustments in the Conversion Rate
of less than one percent of such price will not be required, but any adjustment
that would otherwise be required to be made will be carried forward and taken
into account in the computation of any subsequent adjustment.
Notwithstanding any provision hereof, no securities will be delivered on
conversion of this Security or any portion hereof unless the certification and
other requirements described in the Indenture are satisfied.
Subject to certain limitations in the Indenture, at any time when the
Company is not subject to Section 13 or 15(d) of the United States Securities
Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted
Security or the holder of shares of Common Stock issued upon conversion thereof,
the Company will promptly furnish or cause to he furnished Rule 144A Information
(as defined below) to such Holder of Restricted Securities or such holder of
shares of Common Stock issued upon conversion of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder or
holder, as the case may be, to the extent required to permit compliance by any
such holder with Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act"). "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
If this Security is a Registrable Security, then the Holder of this
Security and the Common Stock of the Company issuable upon conversion thereof is
entitled to the benefits of a Registration Rights Agreement (subject to the
provisions thereof), dated as of November 10, 1997, between the Company and the
Initial Purchaser (the "Registration Rights Agreement"). Pursuant to the
Registration Rights Agreement, the Company has agreed for the benefit of the
Holders from time to time of the Securities and the Common Stock issuable upon
conversion thereof that it will, at its expense, (a) within 90 days after the
first date of original issuance of the Securities, file a shelf registration
statement (the "Shelf Registration Statement") with the
-23-
Commission with respect to resales of the Securities and the Common Stock
issuable upon conversion thereof (together, the "Registrable Securities"), (b)
use its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable but no later than 180
days after the first date of original issuance of the Securities (the
"Settlement Date"), and (c) use its best efforts to maintain such Shelf
Registration Statement continuously effective under the Securities Act, until
the second anniversary of the date of the effectiveness of the Shelf
Registration Statement or such earlier date as is provided in the Registration
Rights Agreement.
If (i) on or prior to 90 days following the first date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to 180 days following the Settlement Date, such
Shelf Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on this
Security from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date in respect of the Securities
following the date on which such Liquidated Damages begin to accrue, and will
accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount of the Securities to and including the 90th day
following such Registration Default and at a rate per annum equal to one-half of
one percent (0.50%) thereof from and after the 91st day following such
Registration Default. In the event that the Shelf Registration Statement ceases
to be effective prior to the second annual anniversary of the initial effective
date of the Shelf Registration Statement or such earlier date as is provided in
the Registration Rights Agreement for a period in excess of 60 days, whether or
not consecutive, during any 12-month period, then the interest rate borne by the
Securities shall increase by an additional one-half of one percent (0.50%) per
annum from the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective to but excluding the day on which
the Shelf Registration Statement again becomes effective.
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security such reference shall be deemed to include reference to the payment
of Liquidated Damages payable as described in the preceding paragraph to the
extent that, in such context, Liquidated Damages are, were or would be payable
in respect of such Security and express mention of the payment of Liquidated
Damages (if applicable) in any provisions of this Security shall not be
construed as excluding Liquidated Damages in those provisions of this Security
where such express mention is not made.
The Holder of this Security, by its acceptance thereof, agrees to be bound
by the terms of the Registration Rights Agreement relating to the Securities and
the Common Stock issuable upon conversion thereof.
-24-
If a Change in Control occurs, the Holder of this Security shall have the
right, at the Holder's option in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that is an integral multiple of $1,000) for cash at
a Repurchase Price equal to 100% of the principal amount thereof plus interest
accrued to the Repurchase Date. At the option of the Company, the Repurchase
Price may be paid in cash or, except as otherwise provided in the Indenture, by
delivery of Common Stock having a fair market value equal to the Repurchase
Price. Payment may not be made in Common Stock unless the Company satisfies
certain conditions prior to the Repurchase Date as provided in the Indenture.
For purposes of this paragraph, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the Closing Prices Per Share for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the Repurchase Date.
Whenever in this Security there is a reference, in any context, to the principal
of any Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security to the
extent that such Repurchase Price is, was or would be so payable at such time,
and express mention of the Repurchase Price in any provision of this Security
shall not be construed as excluding the Repurchase Price in those provisions of
this Security when such express mention is not made.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all amounts then or thereafter to become due on all
Senior Debt of the Company, and this Security is issued subject to such
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
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 (c)
appoints the Trustee its attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable to the extent, in the manner and
with the effect provided in the Indenture. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest, all of the Company's obligations in respect of
the payment of the principal of and interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee either (a) with the written consent of
the Holders of a majority in principal amount of the Securities at the time
outstanding, or (b) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present by the Holders of 66-
2/3% in aggregate principal amount of the Outstanding Securities represented at
such meeting. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
-25-
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 in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, 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 and offered the Trustee indemnity satisfactory to it and the
Trustee shall not have received from the Holders of a majority in principal
amount of the Securities Outstanding a direction inconsistent with such request
and shall have failed to institute any such proceedings for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or interest hereon (including any Liquidated
Damages) on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligations of the Company, which are
absolute and unconditional, to pay the principal of, premium, if any, and
interest (including Liquidated Damages) on this Security at the times, places
and rate, and in the coin or currency, herein prescribed or to convert this
Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations and
satisfaction of certain requirements therein set forth, the transfer of this
Security is registrable on the Security Register upon surrender of this Security
for registration of transfer at the office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of 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. No
service charge shall be made to a Holder for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to recover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation 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 such Security is registered, as the owner thereof for all
purposes, whether or not such Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
-26-
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA
WITHOUT REGARD TO PRINCIPLES REGARDING CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
-27-
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it or
________________________________________________________________ an amount in
cash or, at the Company's election, Common Stock valued as set forth in the
Indenture, equal to 100% of the principal amount hereof, plus interest accrued
to the Repurchase Date, as provided in the Indenture.
Dated: _________________________________
_________________________________
Signature
_________________________________
Signature Guaranteed
Principal amount to be repurchased: ______________________________
Remaining principal amount following such repurchase: _________________________
NOTICES: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
If payment is to be made to a person other than the signatory above, the
signature must be guaranteed by an "Eligible Institution" (banks, stock brokers,
savings and loan associations and credit unions) with membership in an approved
signature guarantee medallion program pursuant to Commission Rule 17Ad-15.
SECTION 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:_______________________________
Authorized Signatory
-28-
ARTICLE III
THE SECURITIES
SECTION 3.1 TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $115,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6, 9.5, or
13.2.
The Securities shall be known and designated as the "5 1/4% Convertible
Subordinated Notes due November 1, 2004" of the Company. Their Stated Maturity
shall be November 1, 2004 and they shall bear interest at the rate of 5 1/4% per
annum from November 17, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually in arrears on May 1 and November 1 of each year, commencing May 1,
1998, and at Maturity, until the principal thereof is paid or made available for
payment, provided that any amount of such principal or interest that is overdue
--------
shall bear interest at the rate of 5 1/4% per annum (to the extent that payment
of such interest shall be legally enforceable), from the date such amount is due
until it is paid or made available for payment, and such interest on any overdue
amount shall be payable on demand.
The principal of, premium, if any and interest on the Securities (including
Liquidated Damages), shall be payable in immediately available funds and 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, at the office of State
Street Bank and Trust Company, N.A. (located at 00 Xxxxxxxx, Xxxxxxxxx Xxxxx,
Xxx Xxxx, XX 00000) in the Borough of Manhattan, The City of New York or, at the
option of the Holder and subject to any fiscal or other laws and regulations
applicable thereto, at any other office or agency of the Company or any Paying
Agent outside The City of New York; provided, however, that 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.
The Securities shall be redeemable at the Company's option, in whole or in
part, at any time on or after November 1, 2000 as provided in the form of
Securities set forth in Sections 2.2 and 2.3 and Article XII.
The Securities shall be convertible as provided in Article XIII.
The Securities shall be subordinated in right of payment to Senior Debt of
the Company as provided in Article XIV.
The Securities shall be subject to repurchase by the Company at the option
of the Holders as provided in Article XV.
-29-
SECTION 3.2 DENOMINATIONS.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any one of its
Chairman of the Board, its Chief Executive Officer, its President, or any one of
its Vice Presidents, under a facsimile of its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. Any such
signature may be manual or facsimile.
Securities bearing the manual or facsimile signature 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or the Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon such Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.4 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.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the
-30-
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 11.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
For purposes of this Section 3.4, each Global Security shall be considered
a definitive Security.
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
RESTRICTIONS ON TRANSFER.
(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 11.2 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. Upon surrender for registration
of transfer of any Security at an office or agency of the Company designated
pursuant to Section 11.2 for such purpose, and subject to the other provisions
of this Section 3.5, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, 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.
At the option of the Holder, and subject to the other provisions of this
Section 3.5, Securities may be exchanged for other Securities of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, and subject to the other provisions of this
Section 3.5, 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 subject to the other provisions of this Section 3.5, 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.
-31-
No service charge shall be made to a Holder 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 3.4, 13.2 or 15.3(f) not involving any
transfer and subject to Section 13.9.
(b) Notwithstanding any other provisions of this Indenture or the
Securities (but subject to Section 2.1), transfers of a Global Security, in
whole or in part, transfers and exchanges of interests therein of the kinds
described in clauses (2), (3), (4) and (5) below and exchanges of interests in
Global Securities, and transfers or exchanges of other Securities as described
in clause (4) below, shall be made only in accordance with this Section 3.5(b).
Transfers and exchanges subject to this Section 3.5 shall also be subject to the
other provisions of this Indenture that are not inconsistent with this Section
3.5.
(1) Limitation on Transfers of a Global Security. A Global Security
---------------------------------------------
may not be transferred, in whole or in part, to any Person other than the
Depositary or a nominee thereof, and no such transfer to any such other
Person may be registered; provided that this clause (1) shall not prohibit
--------
any transfer of a Security that is issued in exchange for a Global Security
but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person.
Nothing in this Section 3.5(b)(1) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 3.5(b).
(2) Restricted Global Security to Regulation S Global Security. If
----------------------------------------------------------
the holder of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected, subject to the Applicable
Procedures only in accordance with this Section 3.5(b)(2) and Section
3.5(b)(5). Upon receipt by the Trustee, as Security Registrar, of (A)
written instructions given in accordance with the Applicable Procedures
from any member of, or participants in, the Depositary ("Agent Member")
directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Regulation S Global
Security in a principal amount equal to that of the beneficial interest in
the Restricted Global Security to be so transferred, (B) a written order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, if applicable, the
Euroclear or CEDEL account, as the case may be) to be credited with, and
the account of the Agent Member to be debited for, such beneficial interest
and (C) a certificate in substantially the form set forth in Annex B given
by the holder of such beneficial interest, the Trustee, as Security
Registrar, shall instruct the Depositary to reduce the principal amount of
the Restricted Global Security, and to increase the principal amount of the
Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted
-32-
Global Security to be so transferred, and to credit or cause to be credited
to the account of the Person specified in such instructions (which during
the Restricted Period shall be the Agent Member for Euroclear or CEDEL or
both, as the case may be) a beneficial interest in the Regulation S Global
Security having a principal amount equal to the amount by which the
principal amount of the Restricted Global Security was reduced upon such
transfer.
(3) Regulation S Global Security to Restricted Global Security. If
----------------------------------------------------------
during the Restricted Period the holder of a beneficial interest in the
Regulation S Global Security wishes to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial interest in
the Restricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section 3.5(b)(3).
Upon receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in the Restricted
Global Security in a principal amount equal to that of the beneficial
interest in the Regulation S Global Security to be so transferred, (B) a
written order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited with,
and the account of the Agent Member (and, if applicable, the Euroclear or
CEDEL account, as the case may be) to be debited for, such beneficial
interest and (C) if the transfer is requested prior to the expiration of
the Restricted Period, a certificate in substantially the form set forth in
Annex C given by the holder of such beneficial interest, the Trustee, as
Security Registrar, shall instruct the Depositary to reduce the principal
amount of the Regulation S Global Security and to increase the principal
amount of the Restricted Global Security, by the principal amount of the
beneficial interest in the Regulation S Global Security to be so
transferred, and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Restricted Global Security having a principal amount equal to the amount by
which the principal amount of the Regulation S Global Security, as the case
may be, was reduced upon such transfer.
(4) Exchanges. In the event that a Restricted Global Security or any
---------
portion thereof is exchanged for a Regulation S Global Security or
Securities other than Global Securities, such other Securities may in turn
be exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (1) through (3)
above and (5) below (including the certification requirements intended to
insure that transfers and exchanges of beneficial interests in a Global
Security comply with Rule 144A, Rule 144 or Regulation S, as the case may
be) and any Applicable Procedures, as may be from time to time adopted by
the Company and the Trustee.
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(5) Interests in Regulation S Global Security to be Held Through
------------------------------------------------------------
Euroclear or CEDEL. Until the termination of the Restricted Period,
------------------
interests in the Regulation S Global Security may be held only through
Agent Members acting for and on behalf of Euroclear and CEDEL, provided
--------
that this Clause (5) shall not prohibit any transfer in accordance with
Section 3.5(b)(3) hereof.
(c) Each Restricted Security and Global Security issued hereunder shall,
upon issuance, bear the legends required by Section 2.2 to be applied to such a
Security and such required legends shall not be removed from such Security
except as provided in the next sentence or paragraph (d) of this Section 3.5.
The legend required for a Restricted Security may be removed from a Security if
there is delivered to the Company such satisfactory evidence, which may include
an opinion of independent counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company that neither such legend nor
the restrictions on transfer set forth therein are required to ensure that
transfers of such Security will not violate the registration requirements of the
Securities Act. Upon provision of such satisfactory evidence, the Trustee, at
the written direction of the Company, shall authenticate and deliver in exchange
for such Security another Security or Securities having an equal aggregate
principal amount that does not bear such legend. If such a legend required for
a Restricted Security has been removed from a Security as provided above, no
other Security issued in exchange for all or any part of such Security shall
bear such legend, unless the Company has reasonable cause to believe that such
other Security is a "restricted security" within the meaning of Rule 144 and
instructs the Trustee in writing to cause a legend to appear thereon.
(d) The provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary 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.
(2) Notwithstanding any other provision in this Indenture or the
Securities, 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
or a nominee thereof unless (A) the Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) in the case of a Global Security held for an account of
Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, (i) is closed
for business for a continuous period of 14 days (other than by reason of
statutory or other holidays) or (ii) announces an intention permanently to
cease business or does in fact do so, (C) there shall have occurred and be
continuing an Event of Default with respect to such Global Security or (D)
a request for certificates has been made upon 60 days' prior
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written notice given to the Trustee in accordance with the Depositary's
customary procedures and a copy of such notice has been received by the
Company from the Trustee. Any Global Security exchanged pursuant to clause
(A) or (B) above shall be so exchanged in whole and not in part and any
Global Security exchanged pursuant to clause (C) or (D) above may be
exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security, provided that any such Security
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so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) above shall be issued in definitive,
fully registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion thereof
to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Security
Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by
means of an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall authenticate and
make available for delivery the Security issuable on such exchange to or
upon the written order of the Depositary or an authorized representative
thereof.
(4) In the event of the occurrence of any of the events specified in
clause (2) above, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully
registered form, without interest coupons.
(5) Neither any Agent Members nor any other Persons on whose behalf
Agent Members may act (including Euroclear and CEDEL and account holders
and participants therein) shall have any rights under this Indenture with
respect to any Global Security, or under any Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair,
as between the Depositary, its Agent Members and any other person on whose
behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any
Security.
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SECTION 3.6 MUTILATED, DESTROYED, LOST OR 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 make
available for delivery, 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.
A Holder shall bear the cost to the Company of replacing a mutilated,
destroyed, stolen or lost Security. Upon the issuance of any new Security under
this Section, the Company also may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 PAYMENT OF INTEREST, INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
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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 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 for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities at such Holder's
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
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Any Security surrendered for conversion during a Record Date Period (except
Securities called for redemption on a Redemption Date or to be repurchased on a
Repurchase Date during, in each case, such period) must be accompanied by
payment of an amount equal to the interest payable on the Interest Payment Date
relating to such Record Date Period on the principal amount of such Securities
being surrendered for conversion, and the interest payable in respect of such
Security on such Interest Payment Date shall be paid to the Holder of such
Security as of the Regular Record Date relating to such Record Date Period. The
interest payable on such Interest Payment Date with respect to any Security
which has been called for redemption on a Redemption Date, or is repurchaseable
on a Repurchase Date, occurring, in either case, during such Record Date Period,
which Security is surrendered for conversion during such Record Date Period,
shall be paid to the Holder of such Security being converted in an amount equal
to the interest that would have been payable on such Security if such Security
had been converted as of the close of business on such Interest Payment Date.
Interest payable in respect of any Security surrendered for conversion on or
after an Interest Payment Date shall be paid to the Holder of such Security as
of the next preceding Regular Record Date, notwithstanding the exercise of the
right of conversion.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Sections
3.5 and 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered shall be canceled promptly by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section 3.9 except as expressly
permitted by this Indenture. All canceled Securities and any certificates in
connection therewith shall be held by the Trustee in accordance with its
customary practices until destroyed by the Trustee; provided, however, that the
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Trustee shall not be required to destroy such Securities. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
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SECTION 3.10 COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 3.11 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" and "CINS" numbers
(if then generally in use), and the Trustee shall use CUSIP numbers or CINS
numbers, as the case may be, in notices of redemption, repurchase or exchange as
a convenience to the 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 redemption, repurchase or
exchange and that reliance may be placed only on the other identification
numbers printed on the Securities.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, or replacement of Securities
herein expressly provided for and any right to receive the payment of principal
of, premium, if any, or interest on, such Securities or Liquidated Damages under
the ninth and tenth paragraphs on the reverse of the form of Securities set
forth in Section 2.3), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 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 11.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation (other than Securities referred to in clauses (i) and
(ii) of clause (1)(A) above)
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(i) have become due and payable, or
(ii) will have 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 clause (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (i)) in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and interest (including
any Liquidated Damages), 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, and that any consents required under any
document evidencing and/or securing Senior Debt have been obtained and are
in full force and effect.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section
4.1, the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 11.3 shall survive. Funds held in trust pursuant to this Section are
not subject to the provisions of Article XIV.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 11.3, all money
deposited with the Trustee pursuant to Section 4.1 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 for
whose payment such money has been deposited with the Trustee.
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All moneys deposited with the Trustee pursuant to Section 4.1 (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 5.1 EVENTS OF DEFAULT.
"Event of Default," whenever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XIV or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) failure to pay the principal or Redemption Price of any Security
at its Maturity, whether or not such payment is prohibited pursuant to
Article XIV hereof; or
(2) failure to pay any interest (including any Liquidated Damages)
upon any Security when it becomes due and payable, whether or not such
payment is prohibited pursuant to Article XIV hereof, and continuance of
such default for a period of 30 days; or
(3) failure to provide a Company Notice in the event of a Change in
Control as provided by Section 15.3; or
(4) failure to perform any other covenant or warranty of the Company
in this Indenture (other than a covenant a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) Any indebtedness for borrowed money by the Company in an
outstanding principal amount in excess of $5,000,000, whether such
Indebtedness now exists or shall hereafter be created, is not paid at final
maturity or the payment thereof is accelerated and such default in payment
or acceleration has not been cured or rescinded or annulled within a period
of 30 days after there shall have 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 principal amount of the Outstanding
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Securities a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; provided, however, that the Trustee shall
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have no obligation, either express or implied, to give any notice, make any
demand, make any collection, initiate any judicial proceeding, file any
proofs of claim or take any action as a result of an Event of Default
described in this clause (5), unless and until the Trustee has received
written notice of such Event of Default from the Company, a Holder of a
Security or a holder of Indebtedness of the Company;
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under the applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or 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.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
5.1(1), (2), (6) and (7)) occurs and is continuing, then and in every such case
the Trustee shall, at the written request of the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities, or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities shall
directly, by notice in writing to the Company, declare the principal of all the
Securities to be due and payable immediately, and upon any such
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declaration such principal and any accrued interest and any unpaid Liquidated
Damages thereon shall become immediately due and payable (provided that if any
amounts are outstanding under the Senior Bank Facility, the Securities shall
become immediately due and payable no earlier than five business days after
notice is given in writing to the agent under the Senior Bank Facility). If an
Event of Default specified in Section 5.1(1) or (2) occurs and is continuing,
the Holder of any Outstanding Security may, by notice in writing to the Company
(with a copy to the Trustee), declare the principal of such Security to be due
and payable immediately, and upon any such declaration such principal and
(subject to Section 3.7) any accrued interest and Liquidated Damages thereon
shall become immediately due and payable (provided that if any amounts are
outstanding under the Senior Bank Facility, the Securities shall become
immediately due and payable no earlier than five business days after notice is
given in writing to the agent under the Senior Bank Facility). If an Event of
Default specified in Sections 5.1(6) and (7) occurs and is continuing, the
principal of, premium, if any, and any accrued interest (including any
Liquidated Damages) on, all of the Securities then Outstanding shall ipso facto
become due and payable immediately without any declaration or other Act on the
part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article V provided, the Holders of a majority in
principal amount of the Outstanding Securities, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest (including any Liquidated Damages) on
all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and any interest
thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at a rate of 5 1/4% per annum, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and any interest (including Liquidated
Damages) on, Securities which
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have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission or annulment shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days,
or
(2) default is made in the payment of the principal of 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 and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at a rate of 5 1/4% per annum, and in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities 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 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to
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the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or either of their creditors, the Trustee
(irrespective of whether the principal of, and any interest on, the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal,
premium, if any and interest (including Liquidated Damages) owing and
unpaid in respect of the Securities and take such other actions, including
participating as a member, voting or otherwise, of any official committee
of creditors appointed in such matter, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements, advances and other amounts due under Section 6.7 of the
Trustee and each predecessor Trustee, its agents and counsel) and of the
Holders of Securities allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claim 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 of Securities by his acceptance thereof 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 of Securities, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, and each predecessor
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security 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 of a
Security in any such proceeding; provided, however, that the Trustee may,
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on behalf of such Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar
committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment
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shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, and each predecessor Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article V 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,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of, premium, if any, and interest (including any Liquidated Damages) 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,
premium, if any, and interest (including any Liquidated Damages),
respectively; and
THIRD: Subject to Article XIV, any remaining amounts shall be repaid to
the Company.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it 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
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
In the event the Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of the Holders, each representing less
than a majority in aggregate principal amount of the Outstanding Securities, the
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture, and shall have no
liability to any person for such action or inaction.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST
AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and (subject to Section 3.7)
interest (including any Liquidated Damages) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date, as the case may be), 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.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security 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 of
Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such 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
3.6, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities is intended to
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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 any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction or this Indenture.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders, either (a) through the written consent of not less than a
majority in principal amount of the Outstanding Securities, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least 66-2/3% in aggregate
principal amount of the Outstanding Securities represented at such meeting, 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 Liquidated Damages) on any Security,
or (2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holders 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.
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SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder of any Security for the enforcement of the payment of
the principal of or interest on any Security on or after the respective Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or the Repurchase Date, as the
case may be) or for the enforcement of the right to convert any Security in
accordance with Article XIII.
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) 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 indemnity
satisfactory to it against such risk or liability is not assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
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SECTION 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder, the Trustee
shall give to all Holders of Securities, in the manner provided in Section 1.5,
notice of such default hereunder actually known to a Responsible Officer of the
Trustee, unless such default shall have been cured or waived; provided, however,
-------- -------
that in the case of any default of the character specified in Section 5.1(4), no
such notice to Holders of Securities shall be given until at least 30 days after
the occurrence of such default. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate or
an Opinion of Counsel;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER INDENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
Securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.6 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 in writing.
SECTION 6.7 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIMS.
The Company agrees
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(1) to pay to the Trustee from time to time such 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, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee (and its directors, officers, employees
and agents) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense, including taxes (other than taxes based on the
income of the Trustee), incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs, expenses and reasonable
attorneys' fees of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event or Default specified in Section 5.1(6) or Section 5.1(7), the expenses
(including the reasonable charges of its counsel) and the compensation for the
services are intended to constitute expenses of the administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.7, except with respect to funds held in trust
for the benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof, or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or if the Trustee is a
subsidiary of a bank holding company, its parent company shall have (and such
parent company shall guarantee the obligations of the Trustee hereunder)) a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, in good standing and having an office
or agency in The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of
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this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. 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 6.9 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 in accordance with the
applicable requirements of Section 6.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by this Section 6.9 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 an Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered
to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 6.8 and
shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder of a Security 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
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Board Resolution, shall promptly appoint a successor Trustee and shall
comply with the applicable requirements of this Section 6.9 and Section
6.10. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.10,
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 of Securities and accepted appointment in the
manner required by this Section 6.9 and Section 6.10, any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders of Securities in the manner provided in Section 1.5. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Notwithstanding the replacement of the Trustee pursuant to this Section
6.9, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee.
The retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee hereunder.
SECTION 6.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
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SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise eligible under this Article,
--------
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.12 AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Company with respect to the Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange or
substitution pursuant to this Indenture. Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder, and every reference
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or any State thereof and authorized under such laws to act as
Authenticating Agent, having (or if such Authenticating Agent is a subsidiary of
a bank holding company, its parent company shall have (and such parent company
shall guarantee the obligations of such Authenticating Agent hereunder)) a
combined capital and surplus of not less than $50,000,000 or its equivalent in
another currency or composite currencies and subject to supervision or
examination by government authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 6.12, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.12, such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section 6.12.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
--------
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eligible under this Section 6.12, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 6.12.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By __________________________,
as Authenticating Agent
By __________________________
Authorized Signatory
SECTION 6.13 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.
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ARTICLE VII
XXXXXX'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after the Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities as of such Regular Record
Date, and
(b) at such other times as the Trustee may reasonably 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 7.2 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 7.1 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 pursuant to Section
7.1 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 for holders of securities issued under an indenture
qualified pursuant to the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act or the Code.
SECTION 7.3 REPORTS BY THE COMPANY.
(a) The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing
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as the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. In the event the Company is not subject to Section 13 or 15(d) of
the Exchange Act, it shall file with the Trustee upon request the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) The Company shall file with the Trustee such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be requested from
time to time by the Trustee.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or,
directly or indirectly, convey, transfer, sell or lease or otherwise dispose of
all or substantially all of its properties and assets to any Person (other than
a wholly owned Subsidiary), and the Company shall not permit any Person (other
than a wholly owned Subsidiary of the Company) to consolidate with or merge into
the Company or convey, transfer, sell or lease all or substantially all of its
properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer, sell or lease all or substantially all of its
properties and assets 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 sale, or which leases, all or
substantially all of the properties and assets of the Company 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, the due and punctual payment of the principal of, premium, if any,
and interest (including Liquidated Damages payable, if any, pursuant to
Section 11.12) on all of the Securities, as applicable, 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 occurred and be continuing; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer, sale or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer, sale or lease of all or the
properties and assets of the Company in accordance with Section 8.1, 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 the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES.
Without the consent of any Holders of Securities, 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, 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 and obligations of
the Company herein and in the Securities as permitted by this Indenture; or
(2) to add to the covenants of the Company for the benefit of the
Holders of Securities, or to surrender any right or power herein conferred
upon the Company; or
(3) to secure the Securities; or
(4) to modify the restrictions on, and procedures for, resale and
other transfers of the Securities to the extent required by any change in
applicable law or regulation (or the interpretation thereof) or in practice
relating to the resale or transfer of restricted securities generally; or
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(5) to make provision with respect to the conversion rights of Holders
of Securities pursuant to Section 13.12; or
(6) to accommodate the issuance, if any, of Securities in book-entry
or definitive form and matters related thereto which do not adversely
affect the interest of the Holders of Securities; or
(7) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(8) to cure any ambiguity, to correct or supplement any provision
herein, which may be inconsistent with any other provision herein or which
is otherwise defective, or to make any other provisions with respect to
matters or questions arising under this Indenture as the Company and the
Trustee may deem necessary or desirable, provided, such action pursuant to
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this clause (8) shall not adversely affect the interests of the Holders of
Securities in any material respect.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 9.3 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and any further appropriate
agreements and stipulations which may be therein contained.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF SECURITIES.
With either (a) the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Company and the Trustee, or (b) by the adoption
of a resolution, at a meeting of Holders of the Outstanding Securities at which
a quorum is present, by the Holders of 66-2/3% in aggregate principal amount of
the Outstanding Securities represented at such meeting, 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 of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
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the consent or affirmative vote of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest payable thereon or any premium payable upon redemption or
mandatory repurchase thereof or change the obligation of the Company to pay
Liquidated Damages pursuant to Section 11.12, or change the place or
currency in which any Security or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or
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repurchase, on or after the Redemption Date or Repurchase Date, as the case
may be), or
(2) reduce the requirements of Section 10.4 for quorum or voting, or
reduce the percentage in aggregate 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 provided for in this Indenture, or
(3) modify the obligation of the Company to maintain an office or
agency in The City of New York pursuant to Section 11.2, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 11.11, except to increase any percentage contained herein or
therein 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, or
(5) modify any of the provisions of Sections 11.8, 11.10 or 11.12, or
(6) modify any provisions of Article XIII, XIV or XV in a manner
adverse to the Holders.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and an Officers' Certificate to the
effect that all conditions precedent have been satisfied. 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 9.4 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.
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SECTION 9.5 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 Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.6 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice to all Holders of Securities, in the manner provided in
Section 1.5, of such fact, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not in any way impair or affect the validity of any such
supplemental indenture.
ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities.
SECTION 10.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities for
any purpose specified in Section 10.1, to be held at such time and at such place
in The City of New York as the Trustee shall determine. Notice of every meeting
of Holders of Securities, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.5, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in Section 10.1, by written request setting
forth in reasonable detail the action proposed to be
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taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities in the amount specified, as the
case may be, may determine the time and the place in The City of New York for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section.
SECTION 10.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a Person
shall be (a) a Holder of one or more Outstanding Securities, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting (subject to repeated applications of this sentence). Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
10.2(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage of
the principal amount of the Outstanding Securities which shall constitute a
quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for a
lack of a quorum, the persons entitled to vote 25% in aggregate principal amount
of the Outstanding Securities at the time shall constitute a quorum for the
taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid, any resolution and all matters (except as limited by
the proviso to Section 9.2) shall be effectively passed and decided if passed or
decided by the Persons entitled to vote not less than 66 2/3% in aggregate
principal amount of Outstanding Securities represented and voting at such
meeting.
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Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.
SECTION 10.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 1.3 and the appointment of any proxy shall be
proved in the manner specified in Section 1.3. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 10.3 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as provided in
Section 10.2(b), in which case the Company or the Holders of Securities calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
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respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to Section
10.2 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Securities
represented at the meeting, and the meeting may be held as so adjourned without
further notice.
SECTION 10.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolu-
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xxxx and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 10.2 and, if
applicable, Section 10.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XI
COVENANTS
SECTION 11.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 11.2 MAINTENANCE OF OFFICES OR AGENCIES.
The Company hereby appoints State Street Bank and Trust Company, N.A., an
Affiliate of the Trustee, as its agent in The City of New York where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer or exchange, where conversion notices, certificates
and other items required to be delivered to effect conversion may be delivered
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served.
The Company hereby appoints State Street Bank and Trust Company, N.A., an
Affiliate of the Trustee, as Paying Agent for the payment of principal of and
interest on the Securities and as Conversion Agent for the Conversion of any of
the Securities in accordance with Article XIII, and appoints the office of the
Trustee as transfer agent where Securities may be surrendered for registration
of transfer or exchange.
The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents with or without
cause for any or all of such purposes; provided, however, that until all of the
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Securities have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 11.3, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or
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surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where Securities may be surrendered for 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, and will give notice to Holders of Securities in the manner
specified in Section 1.5, of the appointment or termination of any such agents
and of the location and any change in the location of any 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,
presentations and surrenders may be made and notices and demands may be served
on and Securities may be surrendered for conversion to the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
SECTION 11.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company at any time shall act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and the Company 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 or on each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, if any, or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure so to act. An installment of principal of, premium if
any, interest or Liquidated Damages with respect to the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent holds
such amount for the benefit of Holders on or before 10:00 a.m., New York City
time, on such date.
The Company will cause each Paying Agent other than the Trustee or
affiliate of 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:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the securities) in the making of any payment of
principal or interest; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Subject to the provisions of any applicable escheat law, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest
(together with any Liquidated Damages in respect thereof) on any Security and
remaining unclaimed for two years after such principal or interest (together
with any Liquidated Damages in respect thereof) has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as a general unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
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Paying Agent, before making any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 11.4 CORPORATE EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
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Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 11.5 MAINTENANCE OF PROPERTIES.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
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therewith may be properly and advantageously conducted at all times; provided,
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however, that nothing in this Section 11.5 shall prevent the Company from
-------
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 11.6 COMPLIANCE WITH LAWS.
The Company will comply, and cause each Subsidiary to comply, with the
requirements of all applicable laws, ordinances, rules, regulations, and
requirements of any governmental authority (including, without limitation, ERISA
and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
where the failure to comply would not have a material adverse effect upon the
Company and its Subsidiaries taken as a whole.
SECTION 11.7 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
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Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which disputed amounts adequate reserves in accordance with generally accepted
accounting principals have been made.
SECTION 11.8 DELIVERY OF CERTAIN INFORMATION.
At any time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder of a Restricted Security or the
holder of shares of Common Stock issued upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities or such holder of Common Stock
issued upon conversion of Restricted Securities, or to a prospective purchaser
of such security designated by any such Holder or holder, as the case may be, to
the extent required to permit compliance by such holder with Rule 144A under the
Securities Act (or any successor provision thereto) in connection with the
resale of such Security by such Holder; provided, however, that the Company
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shall not be required to furnish such information in connection with any request
made on or after the date which is two years from the later of (i) the date such
a security (or any predecessor security) was acquired from the Company or (ii)
the date such a security (or any predecessor security) was last acquired from
the Company or an "affiliate" of the Company within the meaning of Rule 144
under the Securities Act (or any successor provision thereto); and provided,
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further, that the
-------
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Company shall not be required to furnish such information at any time to a
prospective purchaser located outside the United States who is not a "U.S.
Person" within the meaning of Regulation S under the Securities Act if such
Security may then be sold to such prospective purchaser in accordance with Rule
903 or Rule 904 under the Securities Act (or any successor provision thereto).
"Rule 144A Information" shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
SECTION 11.9 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating whether or not
to the best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
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.
The Company will also deliver to the Trustee, forthwith upon any Officer
becoming aware of any Event of Default, an Officers' Certificate specifying with
particularity such default or Event of Default and further stating what action
the Company has taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this Section 11.9 shall be delivered
to the Trustee at its Corporate Trust Office and need not comply with Section
1.4.
SECTION 11.10 RESALE OF CERTAIN SECURITIES.
During the period beginning on the last date of original issuance of the
Securities and ending on the date that is two years from such date, the Company
will not, and will not permit any of its "affiliates" (as defined under Rule 144
under the Securities Act or any successor provision thereto) to, resell (x) any
Securities which constitute "restricted securities" under Rule 144 or (y) any
securities into which such Securities have been converted under this Indenture,
which constitute "restricted securities" under Rule 144 that in either case have
been reacquired by any of them. The Trustee shall have no responsibility in
respect of the Company's performance of its agreement in the preceding sentence.
SECTION 11.11 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 11.5 or 11.6 if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities (or such lesser amount as shall have acted at a meeting
pursuant to the provisions of this Indenture) shall either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of
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the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 11.12 REGISTRATION RIGHTS.
The holders of the Securities and the Common Stock issuable upon conversion
thereof are entitled to the benefits of a Registration Rights Agreement, dated
as of November 10, 1997, between the Company and the Initial Purchaser (the
"Registration Rights Agreement"). Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the holders from time to
time of the Securities and the Common Stock issuable upon conversion thereof
that it will, at its expense, (i) within 90 days after the first date of
original issuance of the Securities, file a shelf registration statement (the
"Shelf Registration Statement") with the Commission with respect to resales of
the Securities and the Common Stock issuable upon conversion thereof, (ii) use
its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable but no later than 180
days after the first date of original issuance of the Securities (the
"Settlement Date") and (iii) use its best efforts to maintain such Shelf
Registration Statement continuously effective under the Securities Act until the
second annual anniversary of the date of the effectiveness of the Shelf
Registration Statement or such earlier date as is provided in the Registration
Rights Agreement.
If (i) on or prior to 90 days following the first date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 180 days following the Settlement Date,
such Shelf Registration Statement is not declared effective (each, a
"Registration Default"), additional interest ("Liquidated Damages") will accrue
on the Securities from and including the day following such Registration Default
to but excluding the day on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears, with the first semi-
annual payment due on the first Interest Payment Date in respect of the
Securities following the date on which such Liquidated Damages begin to accrue,
and will accrue at a rate per annum equal to an additional one-quarter of one
percent (0.25%) of the principal amount of the Securities to and including the
90th day following such Registration Default and at a rate per annum equal to
one-half of one percent (0.50%) thereof from and after the 91st day following
such Registration Default. In the event that the Shelf Registration Statement
ceases to be effective prior to the second annual anniversary of the initial
effective date of the Shelf Registration Statement or such earlier date as is
provided in the Registration Rights Agreement for a period in excess of 60 days,
whether or not consecutive, during any 12-month period, then the interest rate
borne by the Securities shall increase by an additional one-half of one percent
(0.50%) per annum on the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective to but excluding the day on which
the Shelf Registration Statement again becomes effective.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of, premium, if any, or interest on, or in respect of, any
Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages provided for in this
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Section to the extent that, in such context, Liquidated Damages are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of Liquidated Damages (if applicable) in any
provisions hereof shall not be construed as excluding Liquidated Damages in
those provisions hereof where such express mention is not made.
SECTION 11.13 BOOK-ENTRY SYSTEM.
If the Securities cease to trade in the Depositary's book-entry settlement
system, the Company covenants and agrees that it shall use reasonable efforts to
make such other book-entry arrangements that it determines are reasonable for
the Securities.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.1 RIGHT OF REDEMPTION.
The Securities shall be redeemable at the Company's option, in whole or in
part, under the circumstances and at the Redemption Prices specified in the form
of Securities set forth in Sections 2.2 and 2.3.
SECTION 12.2 APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted or
required by any provision of the Securities or this Indenture, shall be made in
accordance with such provision and this Article XII.
SECTION 12.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In the case of any redemption at the election of the
Company of all of the Securities, the Company shall, at least 40 but not more
than 60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date. If the Securities are to be redeemed pursuant to an
election of the Company which is subject to a condition specified in the forms
of Securities set forth in Section 2.2, the Company shall furnish the Trustee
with (a) an Officers' Certificate stating that the Company is entitled to effect
such redemption and setting forth a statement of facts demonstrating the same,
including a statement that there is no default or event of default in respect of
Senior Debt that would prohibit such redemption under Section 14.3, and (b) an
Opinion of Counsel as contemplated by Section 1.2.
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SECTION 12.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within three Business
Days after it receives the notice described in 11.3, from the Outstanding
Securities not previously called for redemption, by such method as the Trustee
may deem fair and appropriate.
If any Registered Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount and certificate
numbers thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 12.5 NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section 1.5
to the Holders of Securities to be redeemed. Notice shall be given at least
once not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and the amount of accrued interest, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
aggregate principal amount of the Securities to be redeemed;
(4) that on the Redemption Date, the Redemption Price, and accrued
interest, if any, will become due and payable upon each Security to be
redeemed, and that interest thereon shall cease to accrue on and after said
date,
(5) the Conversion Rate, the date on which the right to convert the
Securities will terminate and the places where the Securities may be
surrendered for conversion, and
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(6) the place or places where the Securities are to be surrendered for
payment of the Redemption Price and accrued interest, if any.
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 of and at the expense of the Company, and such notice, when
given to the Holders, shall be irrevocable.
SECTION 12.6 DEPOSIT OF REDEMPTION PRICE.
Not less than one Business Day prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as Paying Agent, segregate and hold in trust as provided in Section 11.3)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date other than any Securities
called for redemption on that date which have been converted prior to the date
of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with a 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 3.7) be paid to the Company on Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 12.7 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 herein 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, the Holder of such
Security shall be paid the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
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Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of, premium, if any, and, to the extent
permitted by applicable law, accrued interest on such Security shall, until
paid, bear interest from the Redemption Date at the rate of interest borne by
the Security and such Security shall remain convertible until the principal of
such Security (or portion thereof, as the case may be) shall have been paid or
duly provided for.
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ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1 CONVERSION PRIVILEGE AND CONVERSION RATE.
Subject to and upon compliance with the provisions of this Article, at the
option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or any integral multiple of $1,000 in excess
thereof, may be converted at any time after the Non-Conversion Period at the
principal amount thereof, or of such portion thereof, into fully paid and
nonassessable Common Stock of the Company (calculated as to each conversion to
the nearest 1/100 of a share) at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right shall
expire at the close of business on November 1, 2004; subject, in the case of
conversion of a Global Security, to any applicable book-entry procedures of the
Depositary for such conversion. In case a Security or portion thereof is called
for redemption at the election of the Company or is delivered for repurchase at
the option of the Holder, such conversion right in respect of the Security or
portion thereof so called shall expire at the close of business on the
Redemption Date or the Repurchase Date, unless the Company defaults in making
the payment due upon redemption or the repurchase, as the case may be (subject
as aforesaid to any applicable book-entry procedures).
The rate at which shares of Common Stock shall be delivered upon conversion
(herein called the "Conversion Rate") shall be initially 97.8713 shares of
Common Stock for each $1,000 principal amount of Securities. The Conversion
Rate shall be adjusted in certain instances as provided in this Article 13. The
price at which shares of Common Stock shall be delivered upon conversion (herein
called the "Conversion Price") shall at any time be equal to $1,000 divided by
the then applicable Conversion Rate (and rounded to the nearest cent).
SECTION 13.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege with respect to any Security
or portion thereof, the Holder of any Security to be converted or any other
person acting on its behalf shall surrender such Security, duly endorsed or
assigned to the Company or in blank at any office or agency of the Company
maintained for that purpose pursuant to Section 11.2, accompanied by a duly
signed conversion notice substantially in the form set forth in Annex A stating
that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Alternatively, if such security is represented by a Global Security,
conversion may be effected by written order given to the Trustee in accordance
with the applicable procedures of the Depositary then in effect. Each Security
surrendered for conversion (in whole or in part) during a Record Date Period
shall (except in the case of any Security or portion thereof which has been
called for redemption on a Redemption Date or repurchase on a Repurchase Date
occurring within such period) be accompanied by payment in New York Clearing
House funds or other funds acceptable to the Company of an amount equal to the
interest payable on the Interest Payment
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Date relating to such Record Date Period on the principal amount of such
Security being surrendered for conversion, and the interest payable in respect
of such Security on such Interest Payment Date shall be paid to the Holder of
the such Security as of the Regular Record Date relating to such Record Date
Period. The interest payable on such Interest Payment Date with respect to any
Security which has been called for redemption on a Redemption Date, or is
repurchaseable on a Repurchase Date, occurring, in either case, during a Record
Date Period, which Security is surrendered for conversion during such Record
Date Period, shall be paid to the Holder of such Security being converted in an
amount equal to the interest that would have been payable on such Security if
such Security had been converted as of the close of business on such Interest
Payment Date. Interest payable in respect of any Security surrendered for
conversion on or after an Interest Payment Date shall be paid to the Holder of
such Security as of the next preceding Regular Record Date, notwithstanding the
exercise of the right of conversion.
Holders that surrender Securities for conversion on a date that is not an
Interest Payment Date will not receive any interest for the period from the
Interest Payment Date next preceding the date of conversion to the date of
conversion or for any later period, even if the Securities are surrendered after
a notice of redemption (except for the payment of interest on Securities called
for redemption on a Redemption Date or to be repurchased on a Repurchase Date
between a Regular Record Date and the Interest Payment Date to which it
relates). No other payment or adjustment for interest, or for any dividends in
respect of Common Stock, will be made upon conversion. Holders of shares of
Common Stock issued upon conversion will not be entitled to receive any
dividends payable to holders of shares of Common Stock as of any record time
before the close of business on the conversion date.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver, out of its authorized but previously unissued shares of
Common Stock, at the office of such Conversion Agent a certificate or
certificates for the number of full shares of newly issued Common Stock issuable
upon conversion, together with payment in lieu of any fraction of a share, as
provided in Section 13.3.
All shares of Common Stock delivered upon such conversion of Restricted
Securities shall bear a restrictive legend substantially in the form of the
legend required to be set forth on the Restricted Securities pursuant to Section
2.2 and shall be subject to the restrictions on transfer provided in such
legend. Neither the Trustee nor any agent maintained for the purpose of such
conversion shall have any responsibility for the inclusion or content of any
such restrictive legend on such Common Stock; provided, however, that the
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Trustee or any agent maintained for the purpose of such conversion shall have
provided, to the Company or to the Company's transfer agent for such Common
Stock, prior to or concurrently with a
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request to the Company to deliver to such agent maintained for the purpose of
such conversion certificates for such Common Stock, written notice that the
Securities delivered for conversion are Restricted Securities.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security
may be converted in part, but only if the principal amount of such Security to
be converted is any integral multiple of $1,000 and the principal amount of such
security to remain outstanding after such conversion is equal to $1,000 or any
integral multiple of $1,000 in excess thereof.
If shares of Common Stock to be issued upon conversion of a Security, or
Securities to be issued upon conversion of a Security in part only, are to be
registered in a name other than that of the Holder of such Security, the
Security Registrar shall, prior to the conversion of such Security, record in
the Security Register the transfer of that portion of the Security to be so
converted in the name of the person in whose name such Common Stock or
Securities are to be registered.
SECTION 13.3 FRACTIONS OF SHARES OF COMMON STOCK.
No fractional shares of Common Stock or scrip certificates in respect
thereof shall be issued upon conversion of any Security or Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. Instead of any fractional shares of Common Stock
which would otherwise be issuable upon conversion of any Security or Securities,
the Company shall pay a cash adjustment in respect of such fraction (calculated
to the nearest 1/100 of a share) in an amount in Dollars equal to the same
fraction of the current market price per Common Share (calculated in accordance
with Section 13.4(8) below) at the close of business on the day of conversion,
or at the Company's option, the Company shall round up the conversion
transaction to the next higher whole share.
SECTION 13.4 ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be subject to adjustments from time to time as
follows:
(1) In case at any time after the date hereof, the Company shall pay
or make a dividend or other distribution on any class of capital stock of
the Company payable in shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Conversion Rate by a
fraction of which the numerator shall be the number of shares of
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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 increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. If, after any such date fixed for determination, any
dividend or distribution is not in fact paid, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, to the Conversion Rate
that would have been in effect if such determination date had not been
fixed. For the purposes of this paragraph (1), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates, if any, issued in lieu of fractions of shares of Common
Stock. The Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date hereof, the Company shall issue
rights, warrants or options to all holders of its Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as provided
in paragraph (8) of this Section 13.4) of the Common Stock on the date
fixed for the determination of shareholders entitled to receive such
rights, warrants or options, the Conversion Rate in effect at the opening
of business on the day following the date fixed for such determination
shall be increased by dividing such Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the
number of shares of Common Stock 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 increase to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but will
include shares issuable in respect of scrip certificates, if any, issued in
lieu of fractions of shares of Common Stock. The Company will not issue
any rights or warrants in respect of shares of Common Stock held in the
treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and,
conversely in case outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common Stock, the Conversion
Rate in effect at the opening of business on the day following the
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day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness, shares of
capital stock, or assets (including securities, but excluding any rights,
warrants or options referred to in paragraph (2) of this Section 13.4, any
dividend or distribution paid exclusively in cash, any dividend or
distribution referred to in paragraph (1) of this Section 13.4 and any
merger or consolidation to which Section 13.11 applies), the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which the numerator shall be
the current market price per share (determined as provided in paragraph (8)
of this Section 13.4) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets,
shares or evidences of indebtedness so distributed applicable to one share
of Common Stock and the denominator shall be such current market price per
share of Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, make a
distribution to all holders of its Common Stock consisting exclusively of
cash (excluding any cash that is distributed upon a merger or consolidation
or a sale or transfer of all or substantially all of the assets of the
Company to which Section 13.11 applies or as part of a distribution
referred to in paragraph (4) of this Section 13.4) in an aggregate amount
that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to this paragraph (5) has been
made and (II) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of
consideration payable in respect of any tender offer by the Company or any
of its Subsidiaries for all or any portion of the Common Stock concluded
within the 12 months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to paragraph (6) of this Section
13.4 has been made, exceeds 10% of the product of the current market price
per share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times the
number of shares of Common Stock outstanding on such date (the "aggregate
current market price"), then, and in each such case, immediately after the
close of business on such date for determination, the
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Conversion Rate shall be increased so that the same shall equal the rate
determined by dividing the Conversion Rate in effect immediately prior to
the close of business on the date fixed for determination of the
shareholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section 13.4) of the
Common Stock on the date fixed for such determination less an amount equal
to the quotient of (x) the excess of such combined cash tender amount over
such aggregate current market price divided by (y) the number of shares of
Common Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section 13.4) of the
Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall
require the payment to shareholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) that
combined together with (I) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution), as of the expiration of
such tender or exchange offer, of consideration payable in respect of any
other tender or exchange offer, by the Company or any Subsidiary for all or
any portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment, pursuant to this paragraph (6) has been made and (II) the
aggregate amount of any distributions to all holders of the Company's
Common Stock within 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph
(5) of this Section 13.4 has been made (the "combined tender and cash
amount") exceeds 10% of the product of the current market price per share
of the Common Stock (determined as provided in paragraph (8) of this
Section 13.4) as of the last time (the "Expiration Time") tenders or
exchanges could have been made pursuant to such tender or exchange offer
(as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the Expiration
Time, then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to the close of business on
the date of the Expiration Time by a fraction (i) the numerator of which
shall be equal to (A) the product of (I) the current market price per share
of Common Stock (determined as provided in paragraph (8) of this Section
13.4) on the date of the Expiration Time multiplied by (II) the number of
shares of Common Stock outstanding (including any tendered or exchanged
shares) on the date of the Expiration Time less (B) the combined tender and
cash amount, and (ii) the denominator of which
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shall be equal to the product of (A) the current market price per share of
the Common Stock (determined as provided in paragraph (8) of this Section
13.4) as of the Expiration Time multiplied by (B) the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) as of
the Expiration Time less the number 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").
(7) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or
merger to which Section 13.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of shareholders entitled
to receive such distribution" and "the date fixed for such determination"
within the meaning of paragraph (4) of this Section 13.4), and (b) a
subdivision or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification into
the number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be "the
day upon which such subdivision becomes effective" or "the day upon which
such combination becomes effective," as the case may be, and "the day upon
which such subdivision or combination becomes effective" within the meaning
of paragraph (3) of this Section 13.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section 13.4, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily Closing
Prices Per Share for the five consecutive Trading Days selected by the
Company commencing not more than 10 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex"
date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "'ex' date," when
used with respect to any issuance or distribution, means the first date on
which the Common Stock trades regular way on the applicable securities
exchange or in the applicable securities market without the right to
receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this
paragraph (9)) would require an increase or decrease of at least one
percent in such rate; provided, however, that any adjustments which by
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reason of this paragraph (9) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for
the remaining term of the Securities or any shorter term, in addition to
those required by
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paragraphs (1), (2), (3), (4), (5) and (6) of this Section 13.4, as it
considers to be advisable in order to avoid or diminish any income tax to
any holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for United States
federal income tax purposes or for any other reasons. The Company shall
have the power to resolve any ambiguity or correct any error in this
paragraph (10) and its actions in so doing, absent manifest error, shall be
final and conclusive.
(11) To the extent permitted by applicable law, the Company from time
to time may increase the Conversion Rate by any amount for any period of
time if the period is at least twenty (20) days, the increase is
irrevocable during such period, and the Board of Directors shall have made
a determination that such increase would be in the best interests of the
Company, which determination shall be conclusive; provided, however, that
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no such increase shall be taken into account for purposes of determining
whether the Closing Price Per Share of the Common Stock exceeds the
Conversion Price by 105% in connection with an event which would otherwise
be a Change of Control pursuant to Section 15.3. Whenever the Conversion
Rate is increased pursuant to the preceding sentence, the Company shall
give notice of the increased to the Holders in the manner provided in
Section 1.5 at least fifteen (15) days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.
SECTION 13.5 NOTICE OF ADJUSTMENTS OF CONVERSION RATE.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 13.4 and shall prepare a certificate signed by the
Chief Financial Officer of the Company setting forth the adjusted
Conversion Rate and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith promptly be filed
with the Trustee and with each Conversion Agent; and
(2) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be prepared, and
as soon as practicable after it is prepared, such notice shall be provided
by the Company to all Holders in accordance with Section 1.5.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours. Unless and until a Responsible Officer of the Trustee shall have
received such certificate, the Trustee shall not be deemed to have knowledge of
any adjustment
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of the Conversion Rate and may assume without inquiry that the last Conversion
Rate of which it has knowledge remains in effect.
SECTION 13.6 NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable (i) otherwise than exclusively in cash or (ii)
exclusively in cash in an amount that would require an adjustment pursuant
to Section 13.4; or
(2) the Company shall authorize the granting to the holders of its
Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or
(3) of any reclassification of the Common Stock of the Company, or of
any consolidation, merger or share exchange to which the Company is a party
and for which approval of any shareholders of the Company is required, or
of the conveyance, transfer, sale or lease of all or substantially all of
the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to all Holders in accordance with Section 1.5, at least 20
days (or 10 days in any case specified in clause (1) or (2) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the effective date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, lease, 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 Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up. Neither the
failure to give such notice or the notice referred to in the following paragraph
nor any defect therein shall affect the legality or validity of the proceedings
described in clauses (1) through (4) of this Section 13.6. If at the time the
Trustee shall not be the Conversion Agent, a copy of such notice and any notice
referred to in the following paragraph shall also forthwith be filed by the
Company with the Trustee.
The Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to
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all Holders in accordance with Section 1.5, notice of any tender offer by the
Company or any Subsidiary for all or any portion of the Common Stock at or about
the time that such notice of tender offer is provided to the public generally.
SECTION 13.7 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but previously unissued Common Stock,
for the purpose of effecting the conversion of Securities, the full number of
shares of Common Stock then issuable upon the conversion of all such Outstanding
Securities.
SECTION 13.8 TAXES ON CONVERSIONS.
Except as provided in the next sentence, the Company will pay any and all
transfer, stamp, documentary and other similar taxes and duties that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. A Holder delivering a Security for
conversion will be required to pay any tax or duty which may be payable in
respect of any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of any such tax
or duty or has established to the satisfaction of the Company that such tax or
duty has been paid.
SECTION 13.9 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities will be newly issued shares, upon such
delivery, will have been duly authorized and validly issued and will be fully
paid and nonassessable and, except as provided in Section 13.8, the Company will
pay all taxes, liens and charges with respect to the issue thereof.
SECTION 13.10 CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the Trustee
to be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.9.
SECTION 13.11 PROVISION IN CASE OF CONSOLIDATION, MERGER OR CONVEYANCE OF
ASSETS.
In case of 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 any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any conveyance, sale, transfer or lease of all or substantially all of the
assets of the Company, the Person formed by such consolidation or
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resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture executed in
accordance with Article IX providing that the Holder of such Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 13.1, to convert such Security only
into the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale, transfer or lease by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company (i) is not a Person with
which the Company consolidated or merged with or which merged into or with the
Company or to which such conveyance, sale, transfer or lease was made, as the
case may be ("Constituent Person"), or an Affiliate of a Constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease (provided that if the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease is not the same for each share of
Common Stock of the Company held immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease by other than a Constituent Person
or an Affiliate thereof and in respect of which such rights of election shall
not have been exercised ("Non-Electing Share"), then for the purpose of this
Section 13.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by the holders of
each Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section 13.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.5 promptly upon such execution.
Neither the Trustee, any Paying Agent nor any Conversion Agent shall be
under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any such
consolidation, merger, conveyance, sale, transfer or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Opinion of Counsel with
respect thereto, which the Company shall cause to be furnished to the Trustee
upon request.
SECTION 13.12 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
The Trustee, subject to the provisions of Section 6.1, and any Conversion
Agent shall not at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Rate, or with respect to the nature, extent or amount of any
such adjustment when made, or with respect to
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the method employed, or herein or in any supplemental indenture provided to be
employed, in making the same, or whether a supplemental indenture need be
entered into. Neither the Trustee, subject to the provisions of Section 6.1, 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 other
securities or property or cash, which may at any time be issued or delivered
upon the conversion of any Security; and it or they do not make any
representation with respect thereto. Neither the Trustee, subject to the
provisions of Section 6.1, 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 share certificates or other securities or property
or cash upon the surrender of any Security for the purpose of conversion; and
the Trustee, subject to the provisions of Section 6.1, and any Conversion Agent
shall not be responsible for any failure of the Company to comply with any of
the covenants of the Company contained in this Article.
ARTICLE XIV
SUBORDINATION
SECTION 14.1 SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article IV), the indebtedness represented by the Securities, and the payment of
the principal of, interest on and all other amounts, if any, owing with respect
to each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or other
immediately available funds of all Senior Debt of the Company.
SECTION 14.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, in cash before the Holders of the Securities are
entitled to receive any payment on account of principal of, premium, if any, or
interest (including Liquidated Damages) on the Securities or on account of the
purchase, redemption or other acquisition of Securities by the Company or any
Subsidiary of the Company, and to that end the holders of all Senior Debt shall
be entitled to receive, for
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application to the payment thereof, any payment or distribution of any kind or
character, whether in cash, property or securities, which may be payable or
deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, securities or other property, before all Senior Debt is paid in
full, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt, to the extent necessary to pay all Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include a payment or distribution of stock or securities of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
shares of stock or securities are subordinated in right of payment to all then
outstanding Senior Debt to substantially the same extent as, or to a greater
extent then, the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance, transfer, sale or lease of all or substantially all of its
properties and assets to another Person upon the terms and conditions set forth
in Article VIII shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer, sale or lease such
properties and assets, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer, sale or lease comply with the
conditions set forth in Article VIII.
SECTION 14.3 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that any Securities are declared or otherwise shall become due
and payable before their Stated Maturity, then and in such event the holders of
the Senior Debt outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Debt in cash or other immediately
available funds or otherwise in a manner satisfactory to the holders of such
Senior Debt, before the Holders of the Securities are entitled to receive any
payment by the Company on account of the principal of, premium, if any, or
interest (including Liquidated Damages) on the Securities or on account of the
purchase or other acquisition of the Securities.
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In the event and during the continuation of any default in the payment of
any amount owing in respect of any Senior Debt beyond any applicable grace
period with respect thereto, or in the event that any event of default with
respect to any Senior Debt shall have occurred and be continuing permitting the
holders of such Senior Debt (or a trustee or other representative on behalf of
the holders thereof) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or in the
event any judicial proceeding shall be pending with respect to any such default
in payment or event of default, then no payment shall be made by the Company on
account of principal of, premium, if any, or interest (including Liquidated
Damages) on the Securities, or on account of the purchase, redemption or other
acquisition of the Securities.
In the event that, notwithstanding the foregoing provisions of this
Section, the Company shall make any payment prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over and delivered forthwith to the Company, in the
case of the Trustee, or the Trustee, in the case of such Holder.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.2 would be applicable.
SECTION 14.4 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any proceeding referred to in Section 14.2 or under the conditions
described in Section 14.3, from making payments at any time of principal of,
premium, if any, or interest (including Liquidated Damages) on the Securities,
or (b) the application by the Trustee of any money deposited with it hereunder
to the payment of or on account of the principal of, premium, if any, or
interest (including Liquidated Damages) on the Securities or the retention of
such payment by the Holders, if, at the time of such application by the Trustee,
it did not have knowledge that such payment would have been prohibited by the
provisions of this Article.
SECTION 14.5 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this
Article, to the rights of the holders of such Senior Debt to receive payments
and distributions of cash, property and securities applicable to the Senior Debt
until the principal of, premium, if any, and interest (including Liquidated
Damages) on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the
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Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
SECTION 14.6 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as among the Company, the creditors of the Company other than
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, premium, if any, and interest (including Liquidated
Damages) on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 14.7 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.8 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior 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 or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
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one or more of the following: (i) change the manner, place or terms of payment
or the time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 14.9 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor or
representative thereof; and, prior to the receipt of any such written notice,
the Trustee 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
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provided for in this Section at least one Business Day 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 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 purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within one
Business Day prior to such date.
Subject to the provisions of Section 6.1, the Trustee 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 therefor or representative thereof)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor or representative thereof). 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, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 14.10 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be
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entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 14.11 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall in good
faith, mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article or otherwise.
SECTION 14.12 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be 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.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 14.13 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, (i) the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee and (ii) any notice given to
the Trustee under this Article XIV shall be deemed to have been given to any
such Paying Agent; provided, however, that Section 14.12 shall not apply to the
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Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 14.14 PAYMENT.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article XIII
or upon the repurchase of Securities in accordance with Article XV shall not be
deemed to constitute a payment or
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distribution on account of the principal of, premium, if any, or interest on
Securities or on account of the purchase or other acquisition of Securities, and
(2) the payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of, premium, if any, or interest
on such Security. For the purposes of this Section, the term "junior securities"
means (a) shares of any stock of any class of the Company and any cash, property
or securities into which the Securities are convertible pursuant to Article XIII
and (b) securities of the Company which are subordinated in right of payment to
all Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, the right, which is
absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article XIII or to exchange such Security for Common
Stock in accordance with Article XV if the Company elects to satisfy the
obligations under Article XV by the delivery of Common Stock.
ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 15.1 RIGHT TO REQUIRE REPURCHASE.
In the event that a Change in Control (as hereinafter defined) shall occur,
then each Holder shall have the right, at the Holder's option, but subject to
the provisions of Section 15.3, to require the Company to repurchase, and upon
the exercise of such right the Company shall repurchase, all of such Holder's
Securities, or any portion of the principal amount thereof that is equal to
$1,000 or any integral multiple of $1,000 in excess thereof, on the date (the
"Repurchase Date") that is 45 days after the date of the Company Notice (as
defined in Section 15.3) at a purchase price equal to 100% of the principal
amount of the Securities to be repurchased plus interest accrued to the
Repurchase Date (the "Repurchase Price"); provided, however, that installments
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of interest on Securities whose Stated Maturity is on or prior to the Repurchase
Date shall be payable, in cash, to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant Record Date
according to their terms and the provisions of Section 3.7. Such right to
require the repurchase of the Securities shall not continue after a discharge of
the Company from its obligations with respect to the Securities in accordance
with Article IV, unless a Change in Control shall have occurred prior to such
discharge. At the option of the Company, the Repurchase Price may be paid in
cash or, subject to the fulfillment by the Company of the conditions set forth
in Section 15.2, by delivery of shares of Common Stock having a fair
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market value equal to the Repurchase Price. Whenever in this Indenture there is
a reference, in any context, to the principal of any Security as of any time,
such reference shall be deemed to include reference to the Repurchase Price
payable in respect of such Security to the extent that such Repurchase Price is,
was or would be so payable at such time, and express mention of the Repurchase
Price in any provision of this Indenture shall not be construed as excluding the
Repurchase Price in those provisions of this Indenture when such express mention
is not made; provided that for purposes of Article XIV, such reference shall be
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deemed to include reference to the Repurchase Price only to the extent the
Repurchase Price is payable in cash.
SECTION 15.2 CONDITIONS TO THE COMPANY'S ELECTION TO PAY THE REPURCHASE PRICE
IN COMMON STOCK.
The Company may elect to pay the Repurchase Price by delivery of shares of
Common Stock pursuant to Section 15.1 if and only if the following conditions
shall have been satisfied:
(a) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair market value as of the Repurchase Date
of not less than the Repurchase Price. For purposes of Section 15.1 and
this Section 15.2, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share for the five consecutive Trading Days immediately
preceding the second Trading Day prior to the Repurchase Date;
(b) The Repurchase Price shall be paid only in cash in the event any
shares of Common Stock to be issued upon repurchase of Securities hereunder
(i) require registration under any federal securities law before such
shares may be freely transferrable without being subject to the transfer
restrictions under the Securities Act upon repurchase and if such
registration is not completed or does not become effective prior to the
Repurchase Date, and/or (ii) require registration with or approval of any
governmental authority under any state law or any other federal law before
such shares may be validly issued or delivered upon repurchase and if such
registration is not completed or does not become effective or such approval
is not obtained prior to the Repurchase Date;
(c) Payment of the Repurchase Price may not be made in shares of
Common Stock unless such stock is, or shall have been, approved for listing
on the New York Stock Exchange or listed or quoted on a national securities
exchange or quotation system, in either case, prior to the Repurchase Date;
and
(d) All shares of Common Stock which may be issued upon repurchase of
Securities will be issued out of the Company's authorized but unissued
Common Stock and, will upon issuance, be duly and validly issued and fully
paid and non-assessable and free of any preemptive rights.
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If all of the conditions set forth in this Section 15.2 are not satisfied
in accordance with the terms thereof, the Repurchase Price shall be paid by the
Company only in cash.
SECTION 15.3 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) Unless the Company shall have theretofore called for redemption
all of the Outstanding Securities, on or before the 30th day after the
occurrence of a Change in Control, the Company or, at the request and
expense of the Company on or before the 15th day after such occurrence, the
Trustee, shall give to all Holders of Securities, in the manner provided in
Section 1.5, notice (the "Company Notice") of the occurrence of the Change
in Control and of the repurchase right set forth herein arising as a result
thereof. The Company shall also deliver a copy of such notice of a
repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right, and the place or places where such
Securities are to be surrendered for payment of the Repurchase Price
and accrued interest, if any,
(5) that on the Repurchase Date the Repurchase Price, and accrued
interest, if any, will become due and payable upon each such Security
designated by the Holder to be repurchased, and that interest thereon
shall cease to accrue on and after said date,
(6) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) the place or places that the certificate required by Section
2.3 shall be delivered, and the form of such certificate.
In addition, at least two Business Days preceding the Repurchase Date,
the Company shall publish in an Authorized Newspaper, in the manner
provided in Section 1.5, notice specifying whether the Repurchase Price
will be payable in cash or shares of Common Stock and shall deliver a copy
of such notice to the Trustee.
-94-
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's exercise of such right,
which notice shall set forth the name of the Holder, the principal amount
of the Securities to be repurchased (and, if any Security is to repurchased
in part, the serial number thereof, the portion of the principal amount
thereof to be repurchased and the name of the Person in which the portion
thereof to remain Outstanding after such repurchase is to be registered)
and a statement that an election to exercise the repurchase right is being
made thereby, and, in the event that the Repurchase Price shall be paid in
shares of Common Stock, the name or names (with addresses) in which the
certificate or certificates for shares of Common Stock shall be issued, and
(ii) the Securities with respect to which the repurchase right is being
exercised. Such written notice shall be irrevocable, except that the right
of the Holder to convert the Securities with respect to which the
repurchase right is being exercised shall continue until the close of
business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the
Trustee or the Paying Agent the Repurchase Price in cash or shares of
Common Stock, as provided above, for payment to the Holder on the
Repurchase Date or, if shares of Common Stock are to be paid, as promptly
after the Repurchase Date as practicable, together with accrued and unpaid
interest to the Repurchase Date payable with respect to the Securities as
to which the purchase right has been exercised; provided, however, that
-------- -------
installments of interest that mature on or prior to the Repurchase Date
shall be payable in cash, in the case of Securities, to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular Record Date, in each case
according to the terms and provisions of Article Three.
(d) If any Security (or portion thereof) surrendered for repurchase
shall not be so paid on the Repurchase Date, the principal amount of such
Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date
at the rate of 53% per annum, and each Security shall remain convertible
into shares of Common Stock until the principal of such Security (or
portion thereof, as the case may be) shall have been paid or duly provided
for.
-95-
(e) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (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, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately prior to
the close of business on the Repurchase Date and the Person or Persons in
whose name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such repurchase shall be deemed to have become
on the Repurchase Date the holder or holders of record of the shares
represented thereby; provided, however, that any surrender for repurchase
-------- -------
on a date when the stock transfer books of the Company shall be closed
shall constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued as the
recordholder or holders thereof for all purposes at the opening of business
on the next succeeding day on which such stock transfer books are open. No
payment or adjustment shall be made for dividends or distributions on any
shares of Common Stock issued upon repurchase of any Security declared
prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of
Securities. If more than one Security shall be repurchased from the same
Holder and the Repurchase Price shall be payable in shares of Common Stock,
the number of full shares which shall be issuable upon such repurchase
shall be computed on the basis of the aggregate principal amount of the
Securities so repurchased. Instead of any fractional shares of Common
Stock which would otherwise be issuable on the repurchase of any Security
or Securities, the Company will deliver to the applicable Holder its check
for the current market value of such fractional share. The current market
value of a fraction of a share is determined by multiplying the current
market price of a full share by the fraction, and rounding the result to
the nearest cent. For purposes of this Section, the current market price
of a Common Stock is the Closing Price Per Share of the Common Stock on the
last Trading Day prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of Common
Stock on repurchase of Securities shall be made without charge to the
Holder of Securities being repurchased for such certificates or for any tax
or duty in respect of the issuance or delivery of such certificates or the
securities represented thereby; provided, however, that the Company shall
-------- -------
not be required to pay any tax or duty which may be payable in respect of
(i) income of the Holder or (ii) any transfer involved in the issuance or
delivery of certificates for shares of Common Stock in a name other than
that of the
-96-
Holder of the Securities being repurchased, and no such issuance or
delivery shall be made unless and until the Person requesting such issuance
or delivery has paid to the Company the amount of any such tax or duty or
has established, to the satisfaction of the Company, that such tax or duty
has been paid.
(i) All Securities delivered for repurchase shall be delivered to the
Trustee, the Paying Agent or any other agents (as shall be set forth in the
Company Notice) to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 3.9.
SECTION 15.4 CERTAIN DEFINITIONS.
For purposes of this Article XV,
(a) the term "beneficial owner" shall be determined in accordance with
Rule 13d-3, as in effect on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to the Exchange Act;
(b) a "Change in Control" shall be deemed to have occurred at the
time, after the original issuance of the Securities, of:
(i) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of
capital stock of the Company entitling such Person to exercise 50% or
more of the total voting power of all shares of capital stock of the
Company entitled to vote generally in the elections of directors (any
shares of voting stock of which such person or group is the beneficial
owner that are not then outstanding being deemed outstanding for
purposes of calculating such percentage) other than any such
acquisition by the Company, any Subsidiary of the Company or any
employee benefit plan of the Company; or
(ii) any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the
Company, or any conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company to another Person
(other than (a) any such transaction (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock or capital stock of the Company and (y)
pursuant to which the holders of Common Stock immediately prior to
such transaction are entitled to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of capital stock
entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after such transaction
and (b) any merger which is effected solely to change the jurisdiction
of incorporation of the Company and results in a
-97-
reclassification, conversion or exchange of outstanding shares of
Common Stock into solely shares of common stock);
provided, however, that a Change in Control shall not be deemed to have
-------- -------
occurred if the Closing Price Per Share of the Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the date of the Change in Control or the
date of the public announcement of the Change in Control (in the case of a
Change in Control under Clause (i) above) or the period of 10 consecutive
Trading Days ending immediately prior to the date of the Change in Control
(in the case of a Change in Control under Clause (ii) above) shall equal or
exceed 105% of the Conversion Price in effect on such Trading Day; and
(c) the term "Person" shall include any syndicate or group which would
be deemed to be a "person" under Section 13(d)(3) of the Exchange Act, as
in effect on the date of the original execution of this Indenture.
______________________
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.
-98-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HOMEBASE, INC.
[SEAL] By /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: President and CEO
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
[SEAL] By /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
STATE STREET BANK AND TRUST
COMPANY,
as guarantor of the Trustee's obligations
hereunder as contemplated by
Section 6.8 and 6.12
[SEAL] By /s/ Xxxxxxx X. X'Xxxxxxxx
-----------------------------
Xxxxxxx X. X'Xxxxxxxx
Vice President
-99-
STATE OF California )
----------
: ss.:
COUNTY OF Orange )
---------------
On the 10th day of November, 1997, before me personally came Xxxxx Xxxxxxx,
to me known, who, being by me duly sworn, did depose and say that he/she is
President and CEO of HomeBase, Inc., one of the corporations described in and
which executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his name thereto by like authority.
/s/
---------------------------------
Notary Public
STATE OF CALIFORNIA )
: ss.:
COUNTY OF LOS ANGELES )
On the 12th day of November, 1997, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President of State Street Bank and Trust Company of California,
N.A., a national banking association described in and which executed the
foregoing instrument; that he knows the seal of said association; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said association; and that he signed his
name thereto by like authority.
/s/ Xxxx Xxxxxxxxx
---------------------------------
Notary Public
COMMONWEALTH OF MASS ) [SEAL]
-------------
: ss.:
COUNTY OF Suffolk )
---------------
On the 13th day of November, 1997, before me personally came Xxxxxxx X.
X'Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of State Street Bank and Trust Company, a Massachusetts
banking association described in and which executed the foregoing instrument;
that he knows the seal of said association; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said association; and that he signed his name thereto by
like authority.
/s/ Xxxxx Xxxx
---------------------------------
Notary Public
[SEAL]
-100-
ANNEX A
FORM OF CONVERSION NOTICE
[Notice pursuant to Section 13.2 of the Indenture]
State Street Bank and Trust
Company of California N.A.,
as Conversion Agent
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Re: HOMEBASE, INC.
5 1/4% Convertible Subordinated Notes
due November 1, 2004 (the "Securities")
----------------------------------------
Reference is hereby made to the Indenture, dated as of November 10, 1997
(the "Indenture"), between HomeBase, Inc., as Issuer, and State Street Bank and
Trust Company of California, N.A., as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to the Securities specified below, which are registered
in the name of the undersigned (the "Holder"). The Holder hereby irrevocably
exercises its right to convert such Securities, or the portion thereof, if any,
specified below, into shares of Common Stock and, except to the extent specified
or required as described below, directs that certificates representing such
Shares of Common Shares, together with any check in payment for a fractional
share and any Security representing any unconverted principal amount, be issued
and delivered through the facilities of the Depositary, for credit to the
account(s) of the Person(s) indicated below.
The Holder acknowledges and agrees that no shares of Common Stock will be
delivered upon conversion of the specified Securities during the Non-Conversion
Period and no shares of Common Stock will be delivered on conversion until any
amount payable by the Holder on account of interest is paid, any certificates
evidencing specified Securities not held in book-entry form are duly endorsed or
assigned to the Company or in blank and surrendered
(Continued on next page)
A-1
and any taxes or other charges or documents required in connection with a
transfer on conversion, and any other required items, are delivered to the
Conversion Agent.
The Holder acknowledges and agrees that, notwithstanding this request for
conversion, the Company may require that the shares of Common Stock delivered on
conversion of the specified Securities be delivered in certificated form subject
to a restrictive legend, or that additional certifications be delivered on
behalf of the relevant beneficial owner(s), if it determines that doing so is
necessary to comply with the requirements of the Securities Act or otherwise, as
provided in the Indenture.
Conversion of the specified Securities is subject to the requirements
established by the Company as well as to the procedures of the Depositary, all
as in effect from time to time. The specified Securities will be deemed to have
been converted as of the close of business on the first day on which this
conversion notice and all other required items have been delivered to the
Conversion Agent as provided above and, upon such conversion, shall cease to
accrue interest or be Outstanding (subject to the Holder's right to receive the
Conversion Securities as provided in the Indenture). Prior to such conversion,
the Holder will have no rights in the Conversion Securities.
Please provide the information requested below, as applicable.
(Continued on next page)
A-2
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION THEREOF TO BE CONVERTED:
Principal amount held: $
CUSIP number(s):
Depositary (DTC) account where held:
Principal amount being converted (if less than all):$ ____________
----
2. UNLESS AND TO THE EXTENT OTHERWISE SPECIFIED BELOW, all Securities
(together with any unconverted Securities) will be delivered in book-entry
form to the DTC account specified in Item 1 above.
3. IF OTHER ARRANGEMENTS ARE DESIRED, please specify the type, number and form
of securities to be delivered on conversion and the names(s) of the account
holder(s) or registered owner(s), by checking the appropriate boxes and
providing the information requested:
[ ] Common Shares
[ ] Book-Entry
Number of shares of Common Stock:
DTC Account:
[ ] Certificates
Number of shares of Common Stock:
Registered Owner:
(Continued on next page)
A-3
[ ] Unconverted Securities
[ ] Certificates
Principal Amount: $
Registered Owner:
[ ] Book-Entry
Principal Amount: $
DTC Account:
Please sign and date this notice in the space provided below.
DATE:
Name of Holder: _______________________
Signature(s) of Holder:___________________
Title(s):
(If the Holder is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
the Holder must be stated.)
---------------------
* Aggregate principal amount of each certificate must equal $1,000 or any
amount in excess thereof in integral multiples of $1,000.
(Continued on next page)
A-4
If shares of Common Stock or unconverted Securities are to be delivered other
than to and in the name of the registered owner, any signature must be
guaranteed by an "Eligible Institution" (banks, stock brokers, savings and loan
associations and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule
17Ad-15.
-----------------------------------
Signature Guarantee
A-5
ANNEX B
FORMS OF TRANSFER CERTIFICATES
------------------------------
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Section 3.5(b)(2)
of the Indenture)
State Street Bank and Trust
Company of California, N.A.,
as Trustee
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx, Xxxxxxx, XX 00000
Re: HOMEBASE, INC.
5 1/4% Convertible Subordinated Notes
Due November 1, 2004 (the "Securities")
---------------------------------------
Reference is hereby made to the Indenture, dated as of November 10, 1997
(the "Indenture"), between HomeBase, Inc., as Issuer, and State Street Bank and
Trust Company of California, N.A., as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $_____________ aggregate principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
43738E AA 6) and held with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal aggregate principal amount of Securities evidenced by
the Regulation S Global Security (CUSIP No. U4368W AA 2), which amount, in the
case of transfers during the Restricted Period, immediately after such transfer,
is to be held with the Depositary through Euroclear or CEDEL or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance with Rule 903, Rule 904 or Rule
144 under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor does hereby further certify that:
(A) If the transfer has been effected pursuant to Rule 903 or Rule 904:
(1) the offer of the Securities was not made to a person in the United
States;
B-1
(2) either:
(A) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any
person acting on its behalf reasonably believed that the
transferee was outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) if the transfer is being requested on or prior to ________, 199_,
upon completion of the transaction, the beneficial interest being
transferred as described above was held with the Depositary through
Euroclear or CEDEL or both, and
(B) If the transfer has been effected pursuant to Rule 144, the Securities
have been transferred in a transaction permitted by Rule 144 under the
Securities Act.
Upon giving effect to this request to exchange a beneficial interest in
such Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Securities pursuant
to the Indenture and the Securities.
This certificate and the statements contained herein are made for the
benefit of the Company and the Initial Purchaser. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:_________________________
Name:
Title:
B-2
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of such
registered owner must be stated.)
B-3
ANNEX C
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY DURING THE
RESTRICTED PERIOD
(Transfers pursuant to Section 3.5(b)(3)
of the Indenture)
State Street Bank and Trust
Company of California, N.A.,
as Trustee
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx, Xxxxxxx, XX 00000
Re: HOMEBASE, INC.
5 1/4% Convertible Subordinated Notes
Due November 1, 2004 (the "Securities")
---------------------------------------
Reference is hereby made to the Indenture, dated as of November 10, 1997
(the "Indenture"), between HomeBase, Inc., as Issuer, and State Street Bank and
Trust Company of California, N.A., as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $_________________ aggregate principal amount of
Securities which are evidenced by the Regulation S Global Security (CUSIP No.
U4368W AA 2) and held with the Depositary through Euroclear or CEDEL or both in
the name of [insert name of transferor] (the "Transferor") during the Restricted
Period. The Transferor has requested a transfer of such beneficial interest in
the Securities to a Person that will take delivery thereof in the form of an
equal principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. 43738E AA 6) to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting the
requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any State of the
United States.
C-1
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in Restricted Global
Security, the resulting beneficial interest shall be subject to the restrictions
on transfer applicable to the Restricted Global Securities pursuant to the
Indenture and Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Company and the Initial Purchaser. Terms used in this
Certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:__________________________
Name:
Title:
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of such
registered owner must be stated.)
