--------------------------------------------------------------------------------
INDENTURE
Dated as of February __, 1998
between
IAT MULTIMEDIA, INC.
and
THE BANK OF NEW YORK, as Trustee
----------------
$11,500,000
10% Convertible Subordinated Notes due 2003
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
........................................................................................................1
SECTION 101. Definitions...........................................................1
"Act"...........................................................................................2
"Affiliate".....................................................................................2
"Authenticating Agent"..........................................................................2
"Board of Directors"............................................................................2
"Board Resolution"..............................................................................2
"Business Day"..................................................................................2
"Capital Lease Obligations".....................................................................2
"Change of Control".............................................................................2
"Commission"....................................................................................3
"Common Stock"..................................................................................3
"Company".......................................................................................3
"Company Request"...............................................................................3
"Company Order".................................................................................3
"Corporate Trust Office"........................................................................3
"Current Market Price"..........................................................................3
"Default".......................................................................................4
"Delisted"......................................................................................4
"Designated Senior Debt"........................................................................4
"Escrow Account"................................................................................4
"Exchange Act"..................................................................................4
"Fair Market Value".............................................................................4
"GAAP"..........................................................................................5
"Hedging Obligations"...........................................................................5
"Holder"........................................................................................5
"Indebtedness"..................................................................................5
"Indenture".....................................................................................5
"Interest Payment Date".........................................................................5
"Junior Securities".............................................................................5
"Lien"..........................................................................................6
"Maturity,".....................................................................................6
"National Exchange".............................................................................6
"Notes".........................................................................................6
"Officer".......................................................................................6
"Officers' Certificate".........................................................................6
"Opinion of Counsel"............................................................................6
(i)
"Outstanding,"..................................................................................6
"Paying Agent"..................................................................................7
"Permitted Liens"...............................................................................7
"Person"........................................................................................8
"Pledged Collateral"............................................................................9
"Predecessor Note"..............................................................................9
"Preferred Stock"...............................................................................9
"Principal".....................................................................................9
"Proceeds Pledge and Escrow Agreement"..........................................................9
"Property"......................................................................................9
"Redemption Date"...............................................................................9
"Redemption Price,".............................................................................9
"Regular Record Date"...........................................................................9
"Responsible Officer,"..........................................................................9
"Securities Act"...............................................................................10
"Senior Indebtedness"..........................................................................10
"Significant Subsidiary".......................................................................10
"Special Record Date"..........................................................................10
"Stated Maturity,".............................................................................11
"Subsidiary"...................................................................................11
"Trading Day"..................................................................................11
"Trustee"......................................................................................11
"Trust Indenture Act"..........................................................................11
"U.S. Government Obligations"..................................................................11
"Vice President"...............................................................................11
SECTION 102. Compliance Certificates and Opinions.........................................12
SECTION 103. Form of Documents Delivered to Trustee.......................................13
SECTION 104. Acts of Holders; Record Dates................................................13
SECTION 105. Notices, Etc., to Trustee and Company........................................14
SECTION 106. Notice to Holders; Waiver....................................................15
SECTION 107. Conflict with Trust Indenture Act............................................15
SECTION 108. Effect of Headings and Table of Contents.....................................15
SECTION 109. Successors and Assigns.......................................................15
SECTION 110. Separability Clause..........................................................16
SECTION 111. Benefits of Indenture........................................................16
SECTION 112. Governing Law................................................................16
SECTION 113. Legal Holidays...............................................................16
SECTION 114. Accounting Terms.............................................................16
SECTION 115. Incorporation by Reference of Trust Indenture Act............................16
ARTICLE TWO
NOTE FORMS..............................................................................................17
SECTION 201. Forms Generally..............................................................17
(ii)
SECTION 202. Form of Face of Note.........................................................17
SECTION 203. Form of Reverse of Note......................................................20
SECTION 204. Form of Trustee's Certificate of Authentication..............................23
SECTION 205. Form of Conversion Notice....................................................23
SECTION 206. Form of Option of Holder to Elect Repurchase.................................24
SECTION 207. Form of Assignment by Holder.................................................25
ARTICLE THREE
THE NOTES...............................................................................................26
SECTION 301. Title and Terms..............................................................26
SECTION 302. Denominations. ..............................................................27
SECTION 303. Execution, Authentication, Delivery and Dating...............................27
SECTION 304. Temporary Notes..............................................................28
SECTION 305. Registration, Registration of Transfer and Exchange..........................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. ................................29
SECTION 307. Payment of Interest; Interest Rights Preserved...............................30
SECTION 308. Persons Deemed Owners........................................................31
SECTION 309. Cancellation.................................................................32
SECTION 310. Computation of Interest......................................................32
ARTICLE FOUR
SATISFACTION AND DISCHARGE..............................................................................32
SECTION 401. Satisfaction and Discharge of Indenture......................................32
SECTION 402. Release of Paying Agent......................................................33
ARTICLE FIVE
REMEDIES................................................................................................33
SECTION 501. Events of Default............................................................33
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........................35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
............................................................................36
SECTION 504. Trustee May File Proofs of Claim.............................................36
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.......................37
SECTION 506. Application of Money Collected...............................................37
SECTION 507. Limitation on Suits..........................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest
And to Convert...............................................................39
SECTION 509. Restoration of Rights and Remedies...........................................39
SECTION 510. Rights and Remedies Cumulative...............................................39
SECTION 511. Delay or Omission Not Waiver.................................................39
SECTION 512. Control by Holders...........................................................39
(iii)
ECTION 513. Waiver of Past Defaults......................................................40
ECTION 514. Undertaking for Costs........................................................40
ECTION 515. Waiver of Stay or Extension Laws.............................................40
ARTICLE SIX
THE TRUSTEE.............................................................................................41
SECTION 601. Certain Duties and Responsibilities..........................................41
SECTION 602. Notice of Defaults...........................................................42
SECTION 603. Certain Rights of Trustee....................................................42
SECTION 604. Not Responsible for Recitals or Issuance of Notes............................43
SECTION 605. May Hold Notes...............................................................43
SECTION 606. Money Held in Trust..........................................................44
SECTION 607. Compensation and Reimbursement...............................................44
SECTION 608. Disqualification; Conflicting Interests......................................45
SECTION 609. Corporate Trustee Required; Eligibility......................................45
SECTION 610. Resignation and Removal; Appointment of Successor............................45
SECTION 611. Acceptance of Appointment by Successor.......................................46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
..............................................................................................47
SECTION 613. Preferential Collection of Claims Against Company............................47
SECTION 614. Appointment of Authenticating Agent..........................................47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.......................................................49
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
..............................................................................................49
SECTION 702. Preservation of Information; Communications to Holders.......................49
SECTION 703. Reports by Trustee...........................................................50
SECTION 704. Reports by Company...........................................................50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE....................................................51
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........................51
SECTION 802. Successor Corporation Substituted............................................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES.................................................................................52
SECTION 901. Supplemental Indentures without Consent of Holders...........................52
SECTION 902. Supplemental Indentures with Consent of Holders..............................53
SECTION 903. Execution of Supplemental Indentures. ......................................54
(iv)
SECTION 904. Effect of Supplemental Indentures............................................54
SECTION 905. Revocation and Effect of Consents............................................55
SECTION 906. Conformity with Trust Indenture Act..........................................55
SECTION 907. Reference in Notes to Supplemental Indentures................................55
SECTION 908. Subordination Unimpaired.....................................................55
ARTICLE TEN
COVENANTS...............................................................................................56
SECTION 1001. Payment of Principal and Interest............................................56
SECTION 1002. Maintenance of Office or Agency..............................................56
SECTION 1003. Money for Note Payments to Be Held in Trust..................................57
SECTION 1004. Corporate Existence..........................................................58
SECTION 1005. Change of Control............................................................58
SECTION 1006. Payment of Taxes and Other Claims............................................60
SECTION 1007. Books and Records............................................................60
SECTION 1008. Statement by Company as to Compliance or Default.............................60
SECTION 1009. Stay, Extension and Usury Laws...............................................61
SECTION 1010. Company to Maintain Listing..................................................61
ARTICLE ELEVEN
REDEMPTION OF NOTES.....................................................................................61
SECTION 1101. Right of Redemption..........................................................61
SECTION 1102. Applicability of Article.....................................................61
SECTION 1103. Election to Redeem; Notice to Trustee........................................62
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.................................62
SECTION 1105. Notice of Redemption.........................................................62
SECTION 1106. Deposit of Redemption Price..................................................63
SECTION 1107. Notes Payable on Redemption Date.............................................63
SECTION 1108. Notes Redeemed in Part.......................................................64
ARTICLE TWELVE
CONVERSION OF NOTES.....................................................................................64
SECTION 1201. Conversion Privilege.........................................................64
SECTION 1202. Conversion Procedure.........................................................64
SECTION 1203. Cash Payments in Lieu of Fractional Shares...................................65
SECTION 1204. Adjustment of Conversion Price...............................................66
SECTION 1205. Effect of Reclassification, Consolidation, Merger or Sale....................71
SECTION 1206. Taxes on Shares Issued.......................................................72
SECTION 1207. Reservation of Shares; Shares to Be Fully Paid; Compliance with
Government Requirements; Listing of Common Stock.............................72
SECTION 1208. Responsibility of Trustee....................................................73
(v)
SECTION 1209. Notice to Holders Prior to Certain Actions...................................73
ARTICLE THIRTEEN
SUBORDINATION OF NOTES..................................................................................74
SECTION 1301. Agreement to Subordinate.....................................................74
SECTION 1302. No Payment on Notes in Event of Default on Senior Indebtedness.
..............................................................................................74
SECTION 1303. Distribution on Dissolution, Liquidation and Reorganization..................75
SECTION 1304. Payment to Holders of Senior Indebtedness....................................76
SECTION 1305. Subrogation..................................................................77
SECTION 1306. Payment on Notes Permitted...................................................77
SECTION 1307. Authorization of Holders to Trustee to Effect Subordination..................78
SECTION 1308. Trustee as Holder of Senior Indebtedness.....................................78
SECTION 1309. Notices to Trustee...........................................................78
SECTION 1310. No Fiduciary Duty by Trustee to Holders of Senior Indebtedness.
..............................................................................................79
SECTION 1311. Paying Agent Treated as Trustee..............................................79
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE......................................................................79
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
..............................................................................................79
SECTION 1402. Defeasance and Discharge.....................................................80
SECTION 1403. Covenant Defeasance..........................................................80
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..............................80
SECTION 1405. Application of Trust Money...................................................83
SECTION 1406. Reinstatement................................................................83
SECTION 1407. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions..............................................83
ARTICLE FIFTEEN
COLLATERAL AND SECURITY.................................................................................84
SECTION 1501. Proceeds Pledge and Escrow Agreement.........................................84
SECTION 1502. Recording and Opinions.......................................................84
SECTION 1503. Release of Pledged Securities or Collateral Funds............................85
SECTION 1504. Certificate of the Company...................................................86
SECTION 1506. Authorization of Actions to Be Taken by the Trustee under the
Proceeds Pledge and Escrow Agreement.........................................86
SECTION 1506. Authorization of Receipt of Funds by the Trustee under the
Proceeds Pledge and Escrow Agreement.........................................86
SECTION 1507. Termination of Security Interest.............................................87
(vi)
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF FEBRUARY__, 1998
Trust Indenture Act Section Indenture Section
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) Not Applicable
(b) 608, 610
(c) Not Applicable
Section 311(a) 613
(b) 613
(c) Not Applicable
Section 312(a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313(a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
Section 314(a) 704, 1008
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) 102
(d) Not Applicable
(e) 102
(f) Not Applicable
Section 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
Section 316(a) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture
vii
INDENTURE, dated as of February __, 1998, between IAT
Multimedia, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
executive office at Geschaftshaus Wasserschloss, Xxxxxxxxxxx 00, XX-0000
Xxxxxxxxx-Xxxxx, Xxxxxxxxxxx, and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of an issue of
up to $11,500,000 aggregate principal amount of its 10% Convertible
Subordinated Notes due 2003 (herein called the "Notes") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
WHEREAS, all things necessary to make the Notes, 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
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
1
(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; and
(5) references to Sections or Articles mean Sections or
Articles of this Indenture.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Lease Obligations" means, at the time any determination
thereof is to be made, the amount of liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" of any Person means the Common Stock or Preferred
Stock of such Person. Unless otherwise stated herein or the context otherwise
requires, "Capital Stock" means Capital Stock of the Company.
"Change of Control" means the occurrence of any of the following
events after the date of this Indenture: (i) any Person (including, without
limitation, any "person" within the meaning of Section 13(d) or 14(d) of the
Exchange Act, but excluding (a) the Company, (b) any Subsidiary, (c) any
employee benefit plan of the Company or any Subsidiary and (d) Vertical
Financial Holdings Establishment ("Vertical") or its Affiliates) becomes the
direct or indirect beneficial owner of shares of Capital Stock representing
greater than 50% of the combined voting power of all outstanding shares of
Capital Stock entitled to vote in the election of
2
directors under ordinary circumstances, (ii) the Company consolidates with or
merges into any other Person and the outstanding Common Stock is changed or
exchanged as a result, (iii) the sale, conveyance, transfer or other
disposition of, in one transaction or a series of transactions, all or
substantially all of the assets of the Company or of the collective assets of
the Company and the Subsidiaries to any Person or related group of Persons,
(iv) at any time Vertical ceases to have the right to nominate two persons as
members of the management slate for election to the Board of Directors of the
Company or ceases to have the right to elect a Co-Chairman or the Chairman of
the Company or (v) the Company makes any distribution of cash, Property or
securities (other than regular quarterly dividends, Common Stock, Preferred
Stock which is substantially equivalent to the Common Stock or rights to
acquire Common Stock or Preferred Stock which is substantially equivalent to
the Common Stock) to holders of Common Stock, or the Company or any Subsidiary
purchases or otherwise acquires Common Stock, and the sum of the Fair Market
Value of such cash, Property or securities distributed or Common Stock
purchased on the date the same is made, plus the Fair Market Value, when made,
of all other cash, Property or securities so distributed and Common Stock so
purchased which have occurred during the 12-month period ending on such date,
in each case expressed as a percentage of the aggregate Current Market Price
of all Common Stock outstanding at the close of business on the last Trading
Day prior to the date of such distribution or purchase, exceeds 50%.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means all shares now or hereafter authorized of the
class of common stock, par value $.01 per share, of the Company currently
authorized and stock of any other class into which such shares may hereafter
have been changed.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board, a Co-Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary , of the Company
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust
business shall be administered, which, on the date hereof, is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
"Current Market Price" means, when used with respect to any security
as of any date, the last sale price, regular way, or, in case no such sale
takes place on such date, the average of the closing bid and asked prices,
regular way, of such security in either case as reported for
3
consolidated transactions on the New York Stock Exchange or, if such security
is not listed or admitted to trading on the New York Stock Exchange, as
reported for consolidated transactions with respect to securities listed on
the principal national securities exchange on which such security is listed or
admitted to trading or, if such security is not listed or admitted to trading
on any national securities exchange, as reported on the Nasdaq National
Market, or, if such security is not listed or admitted to trading on the
Nasdaq National Market, as reported on the Nasdaq SmallCap Market, or if such
security is not listed or admitted to trading on any national securities
exchange or the Nasdaq National Market or the Nasdaq SmallCap Market, the
average of the high bid and low asked prices of such security in the
over-the-counter market as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System, the National Quotation Bureau, Inc.
or such other system then in use or, if such security is not quoted by any
such organization, the average of the closing bid and asked prices of such
security furnished by a New York Stock Exchange member firm selected by the
Company. If such security is not quoted by any such organization and no such
New York Stock Exchange member firm is able to provide such prices, the
Current Market Price of such security shall be the Fair Market Value thereof.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Delisted" means that the Common Stock of the Company has ceased to
be listed for trading on a National Exchange. "Delisting" has a correlative
meaning.
"Designated Senior Debt" means indebtedness under the lines of credit
with Swiss Bank Corporation and Volksbank Sottrum as well as stockholder loans
from Xxxxx-Xxxx Xxxxxx and any other Senior Indebtedness the principal amount
of which is $10.0 million or more and which has been designated as Designated
Senior Debt in an Officer's Certificate.
"Escrow Account" has the meaning ascribed to it in the Proceeds
Pledge and Escrow Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Fair Market Value" means, at any date as to any asset, Property or
right (including, without limitation, Capital Stock of any Person, evidences
of indebtedness or other securities, but excluding cash), the fair market
value of such item as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution;
provided, however, that if there is a Current Market Price for such item on
such date, "Fair Market Value" means such Current Market Price (without giving
effect to the last sentence of the definition thereof).
4
"GAAP" means, as of any date, generally accepted accounting
principles in the United States and does not include any interpretations or
regulations that have been proposed but that have not become effective.
"Guarantee Agreement" means the bank guaranty of the Company for the
benefit of Xx. Xxxxxx Xxxxxx dated November ____, 1997.
"Hedging Obligations" mean, with respect to any person, the
obligations of such person under (i) interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and agreements and
arrangements designed to protect such Person against fluctuations in interest
rates and (ii) foreign exchange swap agreements, foreign exchange option
agreements, foreign exchange futures agreements and other agreements or
arrangements designed to protect such Person against fluctuations in foreign
currency exchange rates.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Indebtedness" means with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well
as all indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the
extent not otherwise included, the guarantee by such Person of any
indebtedness of any other Person. The amount of any Indebtedness outstanding
as of any date shall be (i) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest, and (ii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
"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.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Junior Securities" means (a) shares of any and all classes of
Capital Stock and (b) securities of the Company which are subordinated in
right of payment to Senior Indebtedness at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Notes are so subordinated as provided in Article Thirteen.
5
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Maturity," when used with respect to any Note, means the date on
which the Principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"National Exchange" means the Nasdaq National Market, the New York
Stock Exchange or the American Stock Exchange.
"Notes" has the meaning specified in the recitals of the Company.
"Obligations" means any Principal, interest, penalties, fees
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means a Chairman or Co-Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller or the Secretary of the
Company.
"Officers' Certificate" means a certificate signed by a Chairman or
Co-Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee and,
unless otherwise provided in this Indenture, containing the statements
provided for in Section 102; provided, however, that for purposes of Section
1008, "Officers' Certificate" means a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company.
"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,
containing the statements provided for in Section 102.
"Outstanding," when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
6
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company, any
Subsidiary or any Affiliate thereof) in trust, in accordance
with this Indenture, for the Holders of such Notes and the
Trustee or Paying Agent is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this
Indenture; provided that, such Notes shall continue to be
Outstanding until the redemption date or maturity date; and
(iii) Notes which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture,
other than any such Notes in respect of which there shall
have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose
hands such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which the Trustee knows to be so owned
shall be so disregarded. Notes 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 Notes and
that the pledgee is not the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
Principal of or interest on any Notes on behalf of the Company.
"Permitted Liens" means, without duplication, each of the following:
(i) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and do
not extend to any assets other than those of the Person merged into or
consolidated with the Company or;
(ii) Liens on property existing at the time-of acquisition thereof by
the Company, provided that such Liens were in existence prior to the
contemplation of such acquisition;
(iii) Liens existing on the date of this Indenture;
7
(iv) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(v) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(vi) Liens created pursuant to the Proceeds Pledge and Escrow
Agreement;
(vii) Liens incurred in the ordinary course of business of the
Company with respect to obligations that do not exceed [5.0 million] at any
one time outstanding and that (a) are not incurred in connection on with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company;
(viii) Liens securing the Notes;
(ix) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects which, in the aggregate, are not
material in amount, and which do not, in any case, materially detract from the
value of the property subject thereto (as such property is used by the
Company) or interfere with the ordinary conduct of the business of the
Company;
(xi) Liens arising by reason of any judgment, decree or order or any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(xii) any interest or title of a lessor under any Capital Lease
Obligation; and
(xiii) any extension, renewal or placement, in whole or in part, of
any Permitted Lien, provided that any such extension, renewal or replacement
shall be no more restrictive in any material respects that the Lien so
extended, renewed or replaced and shall not extend to any additional property
or assets.
"Person" means any person or entity of any nature whatsoever,
specifically including an individual, firm, company, corporation, limited
liability company, partnership, trust, or other entity.
8
"Pledged Collateral" means the Collateral (as defined in the Proceeds
Pledge and Escrow Agreement) subject to the Proceeds Pledge and Escrow
Agreement.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" of any Person means the class or classes of equity,
ownership or participation interests (however designated) in such Person,
including, without limitation, stock, share, partnership and membership
interests, which are preferred as to the payment of dividends or distributions
by, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of, such Person (or equivalents thereof) over
interests of any other class of interests of such Person. Unless otherwise
stated herein or the context otherwise requires, "Preferred Stock" means
Preferred Stock of the Company.
"Principal" of a debt security means the principal of the security
plus the premium, if any, on the security. "Principal" shall include, with
respect to the Notes, the redemption price or repurchase price, if any,
payable thereon.
"Proceeds Pledge and Escrow Agreement" means the Proceeds Pledge and
Escrow Agreement, of even date with this Indenture, by and between the Company
and the Trustee governing the disbursement of funds from the Escrow Account.
"Property" of any Person means any and all types of real, personal,
tangible, intangible or mixed property owned by such Person, whether or not
included on the most recent consolidated balance sheet of such Person in
accordance with GAAP.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified in Section 202 as the "Regular Record
Date."
"Responsible Officer," when used with respect to the Trustee, means
any vice president assistant vice president, assistant secretary, assistant
treasurer, any trust officer or assistant trust officer or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
9
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Senior Indebtedness" means the Principal of, premium, if any, and
interest (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company, whether or not
such claim for post-petition interest is allowed in such proceeding) on and
all fees and other amounts payable in connection with, the following, whether
absolute or contingent, secured or unsecured, due or to become due,
outstanding on the date of the Indenture or thereafter created, incurred or
assumed: (i) indebtedness of the Company (other than the Notes) to
institutional lenders evidenced by credit or loan agreements, notes or other
written obligations, (ii) all other indebtedness of the Company other than the
Notes, which is (1) for money borrowed or (2) evidenced by a note, security,
debenture, bond or similar instrument or guarantee thereof, (iii) obligations
of the Company as lessee under capitalized leases and leases of Property made
as part of any sale and leaseback transactions; (iv) indebtedness of others of
any of the kinds described in the preceding clauses (i), (ii) and (iii)
assumed or guaranteed by the Company, including the amounts guaranteed by the
Company under the Guarantee Agreement; (v) obligations of the Company under
interest rate and currency swaps, caps, floors, collars or similar agreement
or arrangements, (vi) all obligations of the Company issued or assumed as the
deferred purchase price of Property (but excluding any portion thereof
constituting trade accounts payable arising in the ordinary course of
business), (vii) all obligations of the Company for reimbursement under any
letters of credit to the extent the obligations underlying such letters of
credit are Senior Indebtedness under any of clause (i) through (v) above;
(viii) renewals, extensions, modifications, restatements and refundings of, or
amendments or supplements to, and indebtedness and obligations of a successor
corporation issued in exchange for or in replacement of, indebtedness or
obligations of the kinds described in the preceding clauses (i) through (vii).
Notwithstanding the foregoing, Senior Indebtedness shall not include (a) any
future indebtedness of the kind described in clause (i) or (ii) above if and
to the extent such indebtedness is convertible into shares of Common Stock or
other equity securities of the Company, and the Notes shall rank pari passu
with any such convertible indebtedness unless the instrument creating or
evidencing such convertible indebtedness provides that such convertible
indebtedness is junior in right of payment to the Notes, (b) indebtedness or
amounts owed (except to banks and other financial institutions) for
compensation to employees, or for goods or materials purchased or services
utilized in the ordinary course of business of the Company or of any other
person from whom such indebtedness or amount was assumed or for whom such
indebtedness was guaranteed, (c) indebtedness to a Subsidiary or other
Affiliate of the Company or (d) indebtedness which by its terms (or the terms
of the instrument pursuant to which it is issued) expressly provides that such
indebtedness shall not be senior in right of payment to the Notes.
"Significant Subsidiary" means each Subsidiary that would constitute
a "Significant Subsidiary" within the meaning of Rule 1-02 of Regulation S-X
of the Commission.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity," when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the Principal of such Note or such installment of interest
is due and payable, whether at maturity, upon redemption, upon a Change of
Control or otherwise.
"Subsidiary" of a Person on any date means any other Person, a
majority of whose Capital Stock with voting power, under ordinary
circumstances, entitling holders of such Capital Stock to elect the board of
directors or other governing body of such other Person, is at such date,
directly or indirectly, owned by such Person and/or a Subsidiary or
Subsidiaries of such Person. Unless otherwise stated herein or the context
otherwise requires, "Subsidiary" means a Subsidiary of the Company.
"Trading Day" means (i) if the applicable security is listed or
admitted for trading on a national security exchange, a day on which such
exchange is open for business, (ii) if the applicable security is quoted on
the Nasdaq National Market, a day on which trades may be made thereon or (iii)
if the applicable security is not so listed, admitted for trading or quoted,
any Business Day.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date
or the date any supplemental indenture is executed, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"U.S. Government Obligations" means non-callable (i) direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States for which its full faith and credit are
pledged and (ii) obligations of a Person controlled or supervised by, and
acting as an agency or instrumentality of, the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation of
the United States.
"Vice President" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
In addition, the following terms are defined in the Sections indicated:
Term Defined in Section
"Aggregate Consideration" 1204
"Approvable Shares" 1204
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"Change of Control Notice" 1005
"Change of Control Offer" 1005
"Change of Control Payment" 1005
"Change of Control Payment Date" 1005
"Code" 1004
"covenant defeasance" 1403
"Conversion Agent" 305
"Conversion Price" 1201
"Defaulted Interest" 307
"Defeasance" 1402
"Defeasance Date" 1404
"DTC" 1202
"Event of Default" 501
"Excess Issuance" 1204
"Nonpayment Default" 1302
"Note Register" 305
"Note Registrar" 305
"Payment Blockage Notice" 1302
"Payment Blockage Period" 1302
"Trigger Event" 1204
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act and under this Indenture.
Each such certificate or opinion shall be given in the form
of an Officers' Certificate, if to be given by an officer of the Company, or
an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth
in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than the
Officers' Certificate provided pursuant to Section 1008) 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;
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(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered in an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
13
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgements of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote
on any action, authorized or permitted to be given or taken by Holders. If not
set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote shall be the 30th
day (or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date, only the Holders on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Notes shall be proved by the Note
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note 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 Note.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Trustee
Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and
14
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at such Holder's address as it appears in
the Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act, such
required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
All covenants and agreements in this Indenture by the Trustee shall bind its
successors and assigns, whether so expressed or not.
15
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders of
Notes, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes)
payment of interest or Principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date, Redemption Date or at the Stated Maturity,
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Accounting Terms.
All accounting terms not specifically defined herein shall
be construed in accordance with GAAP, and all financial data required to be
delivered hereunder shall be prepared in accordance with GAAP, applied on a
consistent basis; except as otherwise specifically prescribed herein.
SECTION 115. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the
Trust Indenture Act, which are incorporated by reference in and made a part of
this Indenture. Such provisions shall apply to this Indenture at all times,
notwithstanding that at any time or from time to time this Indenture is not
required to be qualified under the Trust Indenture Act.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
16
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the Notes means the Company and any
successor obligor on the Notes.
All other terms used in this Indenture that are defined by the Trust Indenture
Act, defined by Trust Indenture Act reference to another statute or defined by
Commission rule under the Trust Indenture Act and not otherwise defined herein
have the meanings so assigned to them.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Notes, the Trustee's certificate of authentication and
the Conversion Notice 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 as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes.
The definitive Notes shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
17
SECTION 202. Form of Face of Note.
IAT MULTIMEDIA, INC.
10% Convertible Subordinated Note due 2003
CUSIP No.: _________
No___. $__________________
IAT Multimedia, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________,
or registered assigns, the principal sum of ______________ Dollars on
__________, 2003, and to pay interest thereon from _____________, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on ______________ 1 and _______________
1 of each year, commencing ____________, or, if any such date is not a
Business Day on the next succeeding Business Day (each, an "Interest Payment
Date"), at the rate of 10% per annum, until the Principal hereof is paid. 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 Note (or one or more Predecessor Notes) is registered at the
close of business on ___________ 15 and _______________15, whether or not a
Business Day, preceding the respective Interest Payment Date (the "Regular
Record 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 Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes 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
Notes 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 Note will be made at the office or agency of the Company
maintained for that purpose in New York, New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest on any Interest Payment Date other than at
Maturity may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this
Note 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 by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
IAT MULTIMEDIA, INC.
By:_________________________
18
Attest:
By:________________________
Dated:
Authenticated by:
THE BANK OF NEW YORK, as Trustee
By:______________________________
Dated:
19
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the
Company designated as its 10% Convertible Subordinated Notes due 2003 (herein
called the "Notes"), limited in aggregate principal amount to $11,500,000,
issued and to be issued under an Indenture, dated as of _________________,
1998 (herein called the "Indenture"), between the Company and The Bank of New
York, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Indebtedness and the Holders
of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
Conversion. Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Note is entitled, at his
option, at any time after ______________ [the first anniversary of the date of
issuance of the Notes] and prior to the Stated Maturity of the Outstanding
Notes on ________, 2003 (provided that, in case this Note or any portion
hereof shall be called for redemption prior to such date, such right shall
terminate with respect to this Note or portion hereof, as the case may be, so
called for redemption on the Business Day next preceding the Redemption Date),
to convert the principal amount of this Note (or any portion hereof which is
$1,000 or an integral multiple thereof) into shares of Common Stock. The
Conversion Price shall be subject to adjustment as provided in the Indenture.
In order to exercise the conversion privilege, the Holder shall surrender this
Note, together with the conversion notice hereon duly executed (unless such
Holder is DTC, in which case the customary procedures of DTC will apply), to
the Company at the designated office or agency of the Company in New York, New
York, accompanied (if so required by the Company) by instruments of transfer,
in form satisfactory to the Company and to the Trustee, duly executed by the
Holder or by his duly authorized attorney in writing. Except as provided in
the Indenture, no adjustment or payment is to be made on conversion for
interest accrued hereon or for dividends on shares of Common Stock issued on
conversion. The Company is not required to issue fractions of shares upon any
such conversion, but shall make adjustment therefor in cash as provided in the
Indenture. A Holder is not entitled to any rights of a holder of Common Stock
until such Holder has converted its Notes into Common Stock as provided in the
Indenture.
Optional Redemption by the Company. The Notes are subject to
redemption at any time on or after ____________, 2000, as a whole or in part,
at the election of the Company, upon not less than 30 nor more than 60 days'
notice, at the Redemption Prices (expressed as percentages of the principal
amount being redeemed) set forth below if the Redemption Date occurs during
the twelve-month period beginning ____________ of the years indicated:
For the 12 Months Redemption
after ______, Price
2000 105.00%
20
2001 102.50%
2002 and thereafter 100.00%
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Notes, or
one or more Predecessor Notes, of record at the close of business on the
applicable Regular Record Dates referred to on the face hereof, all as
provided in the Indenture.
Mandatory Redemption. The Notes do not have the benefit of
any sinking fund obligation.
Repurchase at the Option of Holder. Upon a Change of
Control, the Company shall make an offer to purchase all the Outstanding Notes
at a purchase price equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the Change of Control Payment Date. Within the
periods specified in the Indenture, the Company shall mail a notice to each
Holder setting forth the procedures governing the offer to purchase as
required by the Indenture. A Holder may tender or refrain from tendering all
or any portion of such Holder's Notes, at such Holder's discretion, by
completing and signing the form entitled "Option of Holder to Elect
Repurchase" below and delivering such form, together with the Notes with
respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company, to the Trustee. Any partial tender of Notes must be
made in an integral multiple of $1,000.
In the event of redemption or repurchase by the Company of
this Note in part only, a new Note or Notes for the portion hereof not
redeemed or repurchased will be issued in the name of the Holder hereof upon
the cancellation hereof.
Discharge and Defeasance. The Indenture contains provisions
for defeasance of (a) the entire indebtedness of the Notes and (b) certain
restrictive covenants upon compliance by the Company with certain conditions
set forth therein.
Subordination. The indebtedness evidenced by the Notes 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 Senior
Indebtedness, and this Note is issued subject to such provisions and each
Holder of this Note, by accepting the same, agrees to and shall be bound by
such provisions, and authorizes the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
as provided in the Indenture and appoints the Trustee as such Holder's
attorney-in-fact for such purpose.
Default. If an Event of Default shall occur and be
continuing, the Principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
21
Modification. 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 Notes
under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Notes at the time Outstanding. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture to (i) evidence the
succession of another corporation to the Company and the assumption by any
such successor of the covenants of the Company herein and in the Indenture;
(ii) add to the covenants of the Company for the benefit of the Holders, or
surrender any right or power herein conferred upon the Company; (iii) cure any
ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision therein, or to make any other provisions
with respect to matters or questions arising under the Indenture which shall
not be inconsistent with the provisions of the Indenture, provided such action
shall not adversely affect the interests of the Holders in any material
respect; or (iv) provide for uncertificated Notes in addition to or in lieu of
certificated Notes. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
Transfer; Denominations; Exchange. As provided in the
Indenture and subject to certain limitations therein set forth, the transfer
of this Note is registrable in the Note Register, upon surrender of this Note
for registration of transfer at the designated office or agency of the Company
in New York, New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount will be issued to
the designated transferee or transferees. The Notes are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Persons Deemed Owners. Prior to due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
22
Definitions. All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
IAT Multimedia, Inc.
Geschaftshaus Wasserschloss
Xxxxxxxxxxx 00
XX-0000 Xxxxxxxxx-Xxxxx
Xxxxxxxxxxx
Attn: Chief Executive Officer
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
------------------------------------
SECTION 205. Form of Conversion Notice.
To IAT Multimedia, Inc.
The undersigned owner of this Note hereby irrevocably
exercises the option to convert this Note, or portion hereof (which is $1,000
or an integral multiple thereof) below designated, into shares of Common
Stock, par value $.01 per share, of IAT Multimedia, Inc. in accordance with
the terms of the Indenture referred to in this Note, and directs that the
shares issuable and deliverable upon the conversion, together with any check
in payment for fractional shares and any Notes representing any unconverted
principal amount hereof, be issued and
23
delivered to the registered holder hereof unless a different name has been
indicated below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Dated
-------------------------
-------------------------------
Signature (exactly as your name
appears on the face of this Note)
Signature Guaranteed:
By:_______________________
This signature shall be guaranteed by an eligible guarantor institution (a
bank or a trust company having an office or correspondent in the United States
or a broker or dealer which is a member of a registered securities exchange or
the National Association of Securities Dealers, Inc.) with membership in an
approved signature guaranty medallion program pursuant to SEC Rule 17Ad- 15.
Fill in for registration of shares of Common Stock and Notes if to be issued
otherwise than to the registered holder.
----------------------------
Social Security or Other Taxpayer
Identifying Number
----------------------------
(Print Name)
----------------------------
(Print address, including zip code)
$---------------------------
Principal Amount to be Converted (in an integral multiple of
$1,000, if less than all):
SECTION 206. Form of Option of Holder to Elect Repurchase.
To elect to have this Note, or portion hereof (which is
$1,000 or an integral multiple thereof) repurchased by IAT Multimedia, Inc.
pursuant to Section 1005 of the Indenture in connection with a Change of
Control, state the amount you elect to have repurchased (if all, write "ALL"):
$----------.
24
Dated
-------------------------
-------------------------------
Signature (exactly as your name
appears on the face of this Note)
Signature Guaranteed:
By:
----------------------------------
This signature shall be guaranteed by an eligible guarantor institution (a
bank or a trust company having an office or correspondent in the United States
or a broker or dealer which is a member of a registered securities exchange or
the National Association of Securities Dealers, Inc.) with membership in an
approved signature guaranty medallion program pursuant to SEC Rule 17Ad- 15.
SECTION 207. Form of Assignment by Holder.
(I) or (we) assign and transfer this Note to:
-------------------------------------
(Insert assignee's social security or
tax I.D. no.)
-------------------------------------
(Print or type assignee's name,
address and zip code)
and irrevocably appoint The Bank of New York agent to transfer this Note on
the Note Register. The agent may substitute another to act for him.
Dated
----------------- ---------------------------------------
Signature (exactly as your name appears
on the face of this Note)
Name:
Title:
Address:
Phone No.:
Signature Guaranteed:
By:
-------------------
25
This signature shall be guaranteed by an eligible guarantor institution (a
bank or a trust company having an office or correspondent in the United States
or a broker or dealer which is a member of a registered securities exchange or
the National Association of Securities Dealers, Inc.) with membership in an
approved signature guaranty medallion program pursuant to SEC Rule 17 Ad- 15.
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $11,500,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 907 or 1108.
The Notes shall be known and designated as the "10%
Convertible Subordinated Notes due 2003" of the Company. Their Stated Maturity
shall be ____________, 2003, and they shall bear interest at the rate of 10%
per annum from ____________, 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 _____________ and __________________ of
each year, commencing _______________, 199_, until the principal thereof is
paid or made available for payment.
Notwithstanding the foregoing, in the event the Common Stock
of the Company is Delisted, effective as of the effective date of the
Delisting, the interest rate applicable to the Principal amount of the Notes
as set forth on the face of the Notes and in the Indenture shall be increased
from 10% per annum to 15% per annum and the unpaid Principal amount of the
Notes shall bear interest at a rate of 15% per annum from the effective date
of such Delisting until the earlier of (i) the relisting of the Common Stock
on a National Exchange or (ii) such Principal is paid or made available for
payment as set forth in this Section 301. In the event the interest rate
applicable to the Principal amount of the Notes is increased as set forth in
this Section 301, (i) the first 10% of interest payable on the Principal
amount of the Notes on each Interest Payment Date shall continue to be payable
and paid in cash and (ii) the additional 5% of interest payable on the
Principal amount of the Notes on each Interest Payment Date (the "Excess
Interest Amount"), at the option of the Company, shall be payable and paid (x)
in cash, (y) by issuing that number of fully paid and nonassessable shares of
Common Stock which have been registered under the Securities Act having in the
aggregate a Fair Market Value on such Interest Payment Date equal to the
Excess Interest Amount due on such Interest Payment Date or (z) in any
combination thereof. No fractional shares of Common Stock or scrip
representing fractional shares of Common Stock shall be issued as payment of
the Excess Interest Amount to any Holder. If any fractional share of Common
Stock would be issuable upon the payment of any
26
Excess Interest Amount to any Holder, the Company shall make an adjustment
therefor in cash at the Fair Market Value of the Common Stock on the such
Interest Payment Date.
The Principal of and interest on the Notes shall be payable
at the office or agency of the Company in New York, New York, maintained for
such purpose and at any other office or agency maintained by the Company for
such purpose; provided, however, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
The Company shall be required to offer to repurchase Notes
following the occurrence of a Change of Control as provided in Article Ten.
The Notes shall be redeemable at the option of the Company
as provided in Article Eleven.
The Notes shall be convertible into Common Stock as provided
in Article Twelve.
The Notes shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
The Notes shall not have the benefit of any sinking fund
obligations.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiples of
$1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, a Co-Chairmen of the Board, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or one of its Assistant Treasurers, or its Secretary or one of its
Assistant Secretaries. The signature of any of these officers and the
corporate seal of the Trustee on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Notes
27
and the Trustee in accordance with such Company Order shall authenticate and
make available for delivery such Notes as in this Indenture provided and not
otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Note a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes. If temporary Notes
are issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the
temporary Notes at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Notes, the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
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 1002 being herein
sometimes collectively referred to as the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Notes and of transfers of Notes. The Trustee is hereby
appointed "Note Registrar" for the purpose of registering Notes and transfers
of Notes as herein provided, the "Conversion Agent" for the purpose of
converting the Notes as provided herein and the "Paying Agent" for the purpose
of paying Principal of and interest on the Notes on behalf of the Company as
provided herein.
Upon surrender for registration of transfer of any Note at
an office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall authenticate
and make available for delivery, in the name of the designated
28
transferee or transferees, one or more new Notes of any authorized
denominations, of a like aggregate principal amount.
Subject to Section 302, at the option of the Holder, Notes
may be exchanged for other Notes of any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Notes which the Holder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange. Every Note
presented or surrendered for registration of transfer or for exchange shall be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient from a Holder requesting such transfer or exchange to cover any tax
or other government charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant
to Section 304, 907 or 1108 not involving any transfer.
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of (a) Notes selected for redemption
during the 15-day (or shorter) period after the Trustee is notified of a
redemption and preceding the mailing of a notice of such redemption to the
Holders in accordance with Article Eleven (except, in the case of Notes to be
redeemed in part, the portion thereof not to be redeemed) or (b) any Notes
with respect to which a repurchase election has been tendered and not
withdrawn by the Holder thereof in accordance with Section 1005 (except, in
the case of Notes tendered for purchase in part, the portion thereof not to be
purchased).
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a new Note 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
Note 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 of the Company or the Trustee that such Note has been acquired by a
bona
29
fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount
and bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes 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 Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note 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 Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Note 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 Notes
(or their respective Predecessor Notes) 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. At least 20 days prior to the proposed
payment date, the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Note 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
30
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 at his address as it appears in the
Note 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 Notes (or their respective
Predecessor Notes) 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
Notes may be listed, and upon such notice as may be required
by such exchange, if, after written 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, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
In the case of any Note which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Note whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Note (or one or more Predecessor Notes)
is registered at the close of business on such Regular Record Date.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Note 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 Note is registered as the owner of
such Note for the purpose of receiving payment of Principal of
31
and (subject to Section 307) interest on such Note and for all other purposes
whatsoever, whether or not such Note 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 309. Cancellation.
All Notes surrendered for payment, redemption, registration
of transfer or exchange, conversion or repurchase shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of as directed by a Company Order,
provided that in no event shall the Trustee be required to destroy such
cancelled Notes.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of Notes
herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) all Notes theretofore authenticated and
delivered (other than (i) Notes which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Notes 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 1003) have been delivered to the Trustee for
cancellation;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
32
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and the
obligations of the Trustee to any Authenticating Agent under Section 614 shall
survive.
SECTION 402. Release of Paying Agent.
In connection with the satisfaction and discharge of this
Indenture all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon written demand of the Company, be paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of
the following events (whatever the reasons for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon
any Note when it becomes due and payable, and continuance of
such default for a period of ten Business Days, whether or
not such payment is prohibited by the subordination
provisions of this Indenture; or
(2) default in the payment of the Principal of any
Note at its Stated Maturity, whether or not such payment is
prohibited by the subordination provisions of this
Indenture; or
(3) failure to provide timely notice of a Change
of Control in accordance with the provisions of Article Ten;
or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a
period of 30 days after there has been given to the Company
by the Trustee or to the Company and the Trustee by
33
the Holders of at least 25% in principal amount of the
Outstanding Notes a written notice specifying such default
or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or
other evidence of indebtedness for money borrowed by the
Company or any of its Subsidiaries or under any mortgage,
indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any of its Subsidiaries
whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such
indebtedness in an aggregate amount exceeding $10,000,000
becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable or
such obligations being accelerated, without such
acceleration having been rescinded or annulled within a
period of 30 days after there shall have been given, by
first class mail, to the Company by the Trustee (which
notice will be delivered by the Trustee promptly after a
Responsible Officer of the Trustee obtains actual knowledge
of any such default) or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Notes a written notice specifying such default
and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) the entry of a decree or order by a court
having jurisdiction in the premises adjudging the Company or
any of its Significant Subsidiaries a bankrupt or insolvent,
or the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy
or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Company or any
Significant Subsidiary, and, if such case or proceeding is
not commenced by the Company or any Significant Subsidiary
or converted to a voluntary case, such case or proceeding
shall be consented to or acquiesced in by the Company or
such Significant Subsidiary or shall result in the entry of
an order for relief or shall remain for 60 days undismissed;
or
(7) the Company or any Significant Subsidiary
shall apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator,
liquidator, custodian or other similar official for the
Company or any Significant Subsidiary or any property of any
thereof, or, in the absence of such application, shall
consent to, acquiesce in or permit or suffer to exist the
appointment of a trustee, receiver, sequestrator, liquidator
or other custodian for the Company or any Significant
Subsidiary or for any substantial part of the property of
any thereof, and such trustee, receiver, sequestrator,
liquidator, custodian or other similar official shall not be
discharged within 30 days; or the Company or any Significant
Subsidiary shall make a general assignment for the benefit
of creditors or admit in
34
writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of
any of the foregoing; or
(8) the entry of a judgment or order by a court
having jurisdiction in the premises adjudging the Company or
any of its Subsidiaries liable for the payment of money of
at least $10,000,000 and such judgment or order is not
vacated, discharged, stayed or bonded pending appeal within
30 days thereof.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in clauses (6) and (7) of Section 501) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Notes may declare the Principal of all the
Notes, and the interest accrued thereon, to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee, if given by Holders).
Upon any such declaration such Principal shall become immediately due and
payable. If an Event of Default specified in clause (6) or (7) of Section 501
occurs, such amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Notes, 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 installments of interest on all
Notes,
(B) the Principal of any Notes which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at
the rate borne by the Notes, 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
35
(2) all Events of Default, other than the non-payment of the
Principal of Notes which have become due solely by such
declaration of acceleration, have been cured and waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any
installment of interest on any Note when such interest
becomes due and payable and such default continues for a
period of ten (10) Business Days, or
(2) default is made in the payment of the
Principal of any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the whole amount then due and payable on such Notes
for Principal and interest, with interest upon the overdue Principal and, to
the extent that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the Notes; 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 Notes 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 Notes,
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 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 504. 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 the Company or any other obligor upon
the Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Principal of the Notes
shall
36
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,
(i) to file and prove a claim for the whole amount
of Principal and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other
Property payable or deliverable on any such claims and to
distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator, custodian or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of Principal or interest, upon presentation of
37
the Notes 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 607; and
SECOND: To the payment of all amounts due the
holders of Senior Indebtedness to the extent required by
Article Thirteen; and
THIRD: To the payment of the amounts then due and
unpaid for Principal of and interest on the Notes 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 Notes
for Principal and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Note 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 principal
amount of the Outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference
38
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest And to Convert.
Notwithstanding any other provision in this Indenture, but
subject to Article Thirteen, the Holder of any Note shall have the right to
receive payment of the Principal of and (subject to Section 307) interest on
such Note on the respective Stated Maturities expressed in such Note (or, in
the case of redemption, on the Redemption Date), to require the Company to
repurchase such Note pursuant to Article Ten and to convert such Note in
accordance with Article Twelve and to institute suit for the enforcement of
any such payment and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
39
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Notes 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.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Notes may on behalf of the Holders of all the Notes waive
any past default hereunder and its consequences, except a default
(1) in the payment of the Principal of or interest
on any Note, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding Note
affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 514 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 508, or a suit by Holders of more than
10% in aggregate principal amount of the then outstanding Notes or any suit
for the enforcement of the right to convert any Note in accordance with
Article Twelve.
SECTION 515. 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
40
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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties
that are specifically set forth in this Indenture or the
Trust Indenture Act and no others; and
(ii) in the absence of gross negligence, willful
misconduct or 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. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture, but the Trustee need not verify the contents
thereof.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 601(c) does not limit the effect
of Section 601(b);
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 512.
41
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to the provisions of the
Trust Indenture Act and Sections 601(a), 601(b), 601(c) and
601(e).
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act. 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 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) The Trustee may conclusively rely on any
document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document,
but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters to the
extent reasonably deemed necessary by it.
(b) 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, subject to
the provisions of Section 601(b)(ii), rely on an Officers'
Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any actions it takes or omits to
take in good faith (in the absence of gross negligence or
willful misconduct) in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and
attorneys and shall not be responsible for the willful
misconduct or gross negligence of any agents and attorneys
appointed with due care.
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(d) Subject to the provisions of Section 601(c),
the Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be
authorized or within its rights or powers conferred by this
Indenture.
(e) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(f) Any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(g) The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(h) 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 at the
sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry
or investigation;
(i) The Trustee shall not be deemed to have notice
of any Default or Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the
Securities and this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no
43
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes. The Trustee
shall not be accountable for the use or application by the Company of Notes or
the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent, Note
Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered
by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable
expenses, 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 each of the Trustee or any
predecessor Trustee and their agents for, and to hold them
harmless against, any loss, damage, claim, liability or
expense including taxes (other than (i) taxes based upon,
secured by, or determined by the income of the Trustee and
(ii) franchise taxes) incurred without negligence or willful
misconduct on its part, arising out of or in connection with
the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
44
As security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the payment of Principal of or interest on Notes. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 501(6) or Section 501(7), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable Federal
or state bankruptcy, insolvency or other similar law. The Provisions of this
Section 607 shall survive termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest,
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving
written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act
of the Holders of a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the
Company.
45
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 514, any Holder may,
on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes
delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder
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 by mailing written notice
of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note
Register. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. 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,
46
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, 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, subject nevertheless to its lien, if any, provided for in
Section 607. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any document or
instrument or any further act on the part of any of the parties hereto. In
case any Notes 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
Notes so authenticated with the same effect as if such successor Trustee had
itself authenticated such Notes.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Notes issued upon
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, and Notes so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
47
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 be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section. Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders as their names and addresses appear in the Note Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Notes may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
48
This is one of the Notes described in the within-mentioned
Indenture.
---------------------------------,
As Trustee
By
------------------------------
As Authenticating Agent
By
------------------------------
Authorized Officer
49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. 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 5 days after each
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of, and the
principal amount of the Notes held by, the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Company
of any such request, a list of similar form and content as
of a date not more than 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 Note Registrar.
SECTION 702. 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 701 and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Notes and is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt
of such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 702(a), or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless within five days after such tender the Trustee
shall mail to such applicants and file with the Commission, together with a
copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Notes, 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
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to all Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to Section 313 of the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 704. Reports by Company.
(a) The Company shall file with the Trustee copies of all
reports and other information and documents that the Company is required to
file with the Commission pursuant to the Exchange Act. Each such report or
other information or document shall be filed with the Trustee within 15 days
after filing of such report or other information or document with the
Commission. Delivery of such reports, information and documents to the Trustee
is for
51
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates). The Company will mail
or cause to be mailed to all Holders copies of all of (i) its annual reports
to stockholders and (ii) quarterly reports to stockholders which are mailed to
its institutional stockholders.
(b) If the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare (i) for the first three quarters of each fiscal year of the
Company, quarterly financial statements substantially equivalent to the
financial statements required to be included in a report on Form 10-Q under
the Exchange Act, and (ii) annually, complete audited consolidated financial
statements, including, but not limited to, a balance sheet, a statement of
operations, a statement of stockholders' equity and all appropriate notes. All
such financial statements will be prepared in accordance with GAAP, except for
changes with which the Company's independent accountants concur and except
that quarterly financial statements may be subject to year-end adjustments.
The Company will file or cause to be filed with the Trustee and will mail or
cause to be mailed to the Holders a copy of such financial statements within
50 days after the end of each of the first three quarters of each fiscal year
of the Company and within 95 days after the close of each fiscal year of the
Company, respectively. Notwithstanding the foregoing, if the Company is no
longer subject to such reporting requirements by reason of the acquisition of
Capital Stock by, or merger or consolidation of the Company with, a Person
which is subject to such reporting requirements or a Subsidiary of such a
Person and such Person has unconditionally and irrevocably guaranteed payment
in full when due of all amounts payable with respect to the Notes, then the
Company need not prepare, file or mail the financial statements described in
this Section 704(b); provided, however, that such Person complies with Section
704(a) as if references therein to the Company were references to such Person.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other corporation or convey or transfer or lease its properties and assets
substantially as an entirety to any Person, without the consent of Holders of
the majority in aggregate principal amount of the Outstanding Notes, unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a corporation organized and existing under the laws of the
United States of America, any state thereof or the District
of Columbia and shall expressly assume,
52
by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the Principal of and interest on all
the Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(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;
(3) immediately after giving effect to such transaction, the
Notes and this Indenture (as supplemented by any such
supplemental indenture) will be valid and enforceable
obligations of the Company or such successor; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance, transfer
or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation 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 corporation had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holder, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Notes; or
53
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company;
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect
the interests of the Holders in any material respect; or
(4) to provide for uncertificated Notes in addition to or in
lieu of certificated Notes;
provided, however, that, in each case, the Company has delivered to the
Trustee an Officers' Certificate stating that such amendment complies with the
provisions of this Section 901 and an Opinion of Counsel stating that adoption
of such amendment does not conflict with the provisions of this Section 901.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Notes, by an Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the Principal of
or any installment of interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon, or
change the place of payment where, or the coin or currency
in which, any Note 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, on or after the Redemption
Date or, in the case of an offer to purchase Notes by the
Company pursuant to Article Ten which has been made, on or
after the applicable Repayment Date), or modify the
provisions of this Indenture with respect to the
subordination of the Notes in a manner adverse to the
Holders, or
(2) reduce the percentage in principal amount of
the Outstanding Notes, the consent of whose Holders is
required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in
this Indenture, or
54
(3) modify any of the provisions of this Section,
or Section 513, except to increase any such percentage or to
provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby, or
(4) following the making of an offer to purchase
Notes by the Company pursuant to Article Ten, modify the
provisions of this Indenture with respect to the Company's
obligation to purchase such Notes in a manner adverse to
such Holder, or
(5) modify the provisions of this Indenture with
respect to a Holder's right to convert the Notes in a manner
adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
After an amendment or waiver under this Section 902 becomes
effective, the Company shall mail to Holders a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notices, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such amendment or waiver.
SECTION 903. 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 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. 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 Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
55
SECTION 905. Revocation and Effect of Consents.
Until an amendment, supplemental indenture or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by
such Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as such consenting Holder's Note, even if notation of
the consent is not made on any Note. However, prior to becoming effective, any
such Holder or subsequent Holder may revoke the consent as to its Notes or a
portion thereof if the Trustee receives written notice of revocation before
the consent of Holders of the requisite aggregate principal amount of Notes
then outstanding has been obtained and not revoked.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment or waiver or to revoke
any consent previously given, whether or not such Persons continue to be
Holders after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consents from Holders of the
principal amount of Notes required hereunder for such amendment or waiver to
be effective shall have also been given and not revoked within such 90-day
period. After an amendment or waiver becomes effective it shall bind every
Holder; provided, however, that in the case of any amendment referred to in
clauses (1) through (5) of Section 902 such amendment shall bind each Holder
of a Note who has consented to it and every subsequent Holder of a Note that
evidences the same debt as the consenting Holder's Note.
SECTION 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 907. Reference in Notes to Supplemental Indentures.
Notes 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 Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 908. Subordination Unimpaired.
No supplemental indenture entered into under this Article
shall directly or indirectly modify the provisions of Article Thirteen or the
definition of Senior Indebtedness in
56
any manner which might alter or impair the subordination of the Notes with
respect to Senior Indebtedness then outstanding unless each holder of such
Senior Indebtedness has consented thereto in writing.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the Principal of
and interest on the Notes in accordance with the terms of the Notes and this
Indenture. Principal and interest shall be considered paid on the date due if
the Paying Agent (other than the Company or a Subsidiary) prior to 10:00 a.m.,
New York City time, on that date holds money in immediately available funds
and in accordance with this Indenture designated for and sufficient to pay in
cash all Principal and interest then due and the Paying Agent is not
prohibited from paying such money to Holders on that date pursuant to the
terms of this Indenture.
To the extent lawful, the Company shall pay interest
(including post-petition interest in any proceeding under Title 11 of the U.S.
Code or any similar federal, foreign or state law for the relief of debtors)
on (i) overdue Principal and repurchase price, if any, of the Notes at the
rate borne by the Notes and (ii) overdue installments of interest at the same
rate.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or
agency where Notes may be presented or surrendered for payment, where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside New York, New York) where the Notes
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in New York, New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
57
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company or any Affiliate of the Company shall at any
time act as its own Paying Agent, it will, on or before each due date of the
Principal of or interest on any of the Notes, 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 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, on or before each due date of the Principal of or interest on any
Notes, deposit with a Paying Agent a sum sufficient to pay the Principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such Principal or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act. The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the Principal of or interest on Notes 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 notice of any default by the
Company (or any other obligor upon the Notes) in the making
of any payment of Principal or interest; and
(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 (if other than the Company, a Subsidiary or an Affiliate thereof)
shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the Principal of or
interest on any Note and remaining unclaimed for two years after such
Principal or interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor,
58
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, 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 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and its Subsidiaries, and shall comply with all statutes, rules,
regulations and orders of and restrictions imposed by governmental and
administrative authorities and agencies applicable to the Company and its
Subsidiaries; provided, however, that the foregoing shall not obligate the
Company to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries and that the loss thereof is not
disadvantageous in any material respect to any Holder.
SECTION 1005. Change of Control.
(a) In the event of a Change of Control, the Company shall
give or cause to be given written notice in the form of an Officers'
Certificate (the "Change of Control Notice") to all Holders, the Trustee and
the Paying Agent of such event and shall make an offer to purchase (as the
same may be extended in accordance with applicable law, the "Change of Control
Offer") all then Outstanding Notes at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the
Change of Control Payment Date. The Change of Control Notice shall be given in
accordance with Section 1105 and the Change of Control Offer shall be made not
more than 30 days following the date of the Change of Control (the "Change of
Control Date"), unless the Company has previously given a notice of optional
redemption by the Company of all of the Notes in accordance with this
Indenture. The Change of Control Notice shall set forth:
(i) that a Change of Control has occurred and,
unless the Notes are subject to a notice of optional
redemption described above, that the Company is offering to
repurchase all of the Outstanding Notes;
(ii) a brief description of such Change of Control
and, to the extent readily available to the Company,
information with respect to pro forma consolidated income,
cash flow and capitalization of the Company after giving
effect to such Change of Control and such other financial
information relating to the Company
59
with respect to such Change of Control as the Company may,
in its sole discretion, deem relevant to a decision whether
to convert or hold Notes or tender Notes in connection with
such Change of Control Offer;
(iii) the repurchase price (the "Change of Control
Payment");
(iv) the expiration date of the Change of Control
Offer, which shall be no earlier than 30 days nor later than
60 days from the date the Change of Control Notice is
mailed;
(v) the date such purchase shall be effected,
which shall be no later than 30 days after the expiration
date of the Change of Control Offer (the "Change of Control
Payment Date");
(vi) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes or
portions thereof accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest on and after
the Change of Control Payment Date;
(vii) the Conversion Price;
(viii) the name and address of the Paying Agent
and the Conversion Agent;
(ix) that Notes (duly endorsed for transfer to the
Company), together with the form of "Option of Holder to
Elect Repurchase" thereon completed and signed, must be
surrendered to the Paying Agent prior to the expiration of
the Change of Control Offer to collect the Change of Control
Payment; and
(x) any other information required by applicable
law to be included therein and any other procedures that a
Holder must follow in order to have Notes repurchased.
(b) The Change of Control Offer shall remain open until the
close of business on the expiration date of the Change of Control Offer. Each
Holder shall have the right to withdraw his tender in accordance with
applicable rules promulgated by the Commission under the Exchange Act.
(c) In the event that the Company is required to make a
Change of Control Offer, the Company will comply with any applicable
securities laws and regulations, including, to the extent applicable, Section
14(e) of, and Rule 14e-1 under, the Exchange Act.
(d) On the Change of Control Payment Date, the Company
shall, to the extent lawful:
60
(i) accept for payment Notes or portions thereof
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent in immediately
available funds an amount equal to the Change of Control
Payment with respect to all Notes or portions thereof so
accepted; and
(iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof tendered
to the Company.
(e) The Paying Agent shall promptly (but in any case not
later than five Business Days after the Change of Control Payment Date) mail
to each Holder of Notes so accepted payment in an amount equal to the Change
of Control Payment for such Holder's Notes, and the Trustee shall promptly
authenticate and mail to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered by such Holder, if any;
provided, that each such new Note shall be in principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
all repurchases pursuant to this Section 1005 on or as soon as practicable
after the Change of Control Payment Date.
SECTION 1006. 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, material and supplies which,
if unpaid, might by law become a lien upon the Property of the Company or any
Subsidiary; provided, however, that the 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 the good faith judgment of the Board of Directors evidenced by a
Board Resolution) have been established.
SECTION 1007. Books and Records.
The Company shall, and shall cause each Subsidiary to, at
all times keep proper books of record and account in which proper entries
shall be made in accordance with generally accepted accounting principles and,
to the extent applicable, regulatory accounting principles.
SECTION 1008. Statement by Company as to Compliance or 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 that a review of the activities of the Company and the Subsidiaries
during the preceding fiscal year has been made under the
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supervision of the signing Officer with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture and further stating, as to such Officer, that to the best of his or
her knowledge the Company has kept, observed, performed and fulfilled each and
every covenant and condition contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and
conditions hereof (or, if an Event of Default or an event which with notice,
the passage of time or both would be an Event of Default shall have occurred,
describing all such defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with
respect thereto), and that, to the best of his or her knowledge, no event has
occurred and remains in existence by reason of which payments on account of
the Principal of or interest on the Notes are prohibited.
SECTION 1009. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any
such law, 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 has been enacted.
SECTION 1010. Company to Maintain Listing.
The Company shall use its best efforts to maintain the
listing of its Common Stock on a National Exchange.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
The Notes shall not be redeemable at the option of the
Company prior to ___________, 2000. The Company may, at its option, redeem all
or any part of the Notes at any time on or after ____________, 2000, at the
Redemption Prices specified in the form of Note hereinbefore set forth for
redemptions, together with interest accrued to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company shall be
made in accordance with this Article and such Notes.
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SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Notes, the
Company shall, at least 15 days prior to mailing any notice of redemption to
the Holders (unless the Trustee consents to a shorter period), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Notes to be redeemed.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the
particular Notes to be redeemed shall be selected not more than 60 days or
less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Notes not previously called for redemption, in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are quoted or listed, or if not quoted or listed, by lot or such
other method that complies with applicable legal requirements and that the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Notes of a denomination larger than
$1,000. The Trustee shall promptly notify the Company and each Note Registrar
in writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to
the portion of the principal amount of such Note which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at his address
appearing in the Note Register.
In order to facilitate the redemption of Outstanding Notes,
the Board of Directors may fix by Board Resolution a record date for the
determination of Outstanding Notes to be redeemed, not more than 60 days nor
less than 30 days prior to the applicable Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
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(4) the name and address of the Paying Agent and
Conversion Agent;
(5) that Notes called for redemption may be
converted at any time before the close of business on the
Business Day immediately preceding the Redemption Date in
accordance with Article Twelve;
(6) that Holders who want to convert Notes must
satisfy the requirements in the Paragraph of the Notes
entitled "Conversion;"
(7) that Notes called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(8) the CUSIP number of the Notes;
(9) if fewer than all of the outstanding Notes are
to be redeemed, the certificate numbers and principal
amounts of the particular Notes to be redeemed;
(10) if any Note is being redeemed in part, that,
after the Redemption Date, upon surrender of such Note, a
new Note or Notes in principal amount equal to the
unredeemed portion will be issued; and
(11) that unless the Company defaults in making
such redemption payment or the Paying Agent is prohibited
from making such redemption payment pursuant to the terms of
this Indenture, interest on Notes called for redemption
ceases to accrue on and after the Redemption Date.
Notice of redemption of Notes to be redeemed at the election of the Company
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) 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 Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
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Redemption Price and accrued interest) such Notes shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such at the close of business on the relevant
record dates according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Note.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE TWELVE
CONVERSION OF NOTES
SECTION 1201. Conversion Privilege.
Each Holder may, at such Holder's option, at any time after
________, 1999 and prior to the close of business on ___________, 2003, unless
earlier redeemed or repurchased, convert such Holder's Notes, in whole or in
part (in denominations of $1,000 or multiples thereof), at 100% of the
principal amount so converted, into shares of Common Stock at a conversion
price per share equal to $_____, as such conversion price may be adjusted from
time to time in accordance with this Article Twelve (the "Conversion Price").
SECTION 1202. Conversion Procedure.
(a) To convert a Note, the Holder thereof must (1) complete
and sign the "Form of Election to Convert" thereon (unless such Holder is The
Depository Trust Company ("DTC") or its nominee, in which case the customary
procedures of DTC will apply), (2) surrender such Note to the Conversion
Agent, (3) furnish appropriate endorsements and transfer documents if required
by the Note Registrar or the Conversion Agent and (4) pay any transfer or
similar tax if required by Section 1206. The Conversion Agent (if other than
the Company) shall promptly
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(and in any event within two business days) notify the Company of each such
conversion. The Company's delivery to the Holder of a fixed number of shares
of Common Stock (and any cash in lieu of fractional shares of Common Stock
into which such Note is converted) shall be deemed to satisfy the Company's
obligation to pay the principal amount of such Note and, except as provided in
the next sentence, all accrued interest on such Note. If such Note (including
a Note which has been called for redemption and even if a Change of Control
Offer has been made) is converted after a Regular Record Date and prior to the
related Interest Payment Date, the full interest installment on such Note
scheduled to be paid on such Interest Payment Date shall be payable on such
Interest Payment Date to the Holder of record at the close of business on such
record date.
(b) As promptly as practicable after the surrender of a Note
in compliance with this Section 1202, the Company shall issue and deliver at
the office or agency of the Note Registrar or the Conversion Agent to such
Holder, or on such Holder's written order, a certificate or certificates for
the full number of whole shares of Common Stock issuable upon the conversion
of such Note in accordance with the provisions of this Article Twelve and a
check or cash with respect to any fractional share of Common Stock arising
upon such conversion as provided in Section 1203. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
then, subject to Article Two, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of the Note so surrendered, without
charge to such Holder, a new Note or Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Note.
(c) Each conversion shall be deemed to have been effected on
the date on which such Note shall have been surrendered in compliance with
this Section 1202, and the Person in whose name any certificate or
certificates for shares of Common Stock shall be issuable upon such conversion
shall be deemed to have become on said date the holder of record of the shares
of Common Stock represented thereby for all purposes; provided, however, that
no surrender of a Note on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the Person or Persons
entitled to receive such shares upon such conversion as the record holder or
holders of such shares on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such shares as the record
holder or holders thereof for all purposes at the close of business on the
next succeeding day on which such stock transfer books are open and, in any
such case, such conversion shall be at the Conversion Price in effect on the
date on which such Note shall have been surrendered. If the last day on which
a Note may be converted is not a Business Day, the Note may be surrendered to
that Conversion Agent on the next succeeding Business Day. Provisions of this
Indenture that apply to conversion of all of a Note also apply to conversion
of a portion of such Note.
SECTION 1203. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares of Common Stock shall be issued upon conversion of Notes. If
more than one Note shall be surrendered for conversion at one time by the same
Holder, the full number of whole shares of
66
Common Stock which shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of Notes (or specified portions
thereof to the extent permitted hereby) so surrendered. If any fractional
share of Common Stock would be issuable upon the conversion of any Note or
Notes, the Company shall make an adjustment therefor in cash at the Current
Market Price of the Common Stock as of the close of business on the Business
Day prior to such conversion.
SECTION 1204. Adjustment of Conversion Price.
(a) If the Company shall (i) pay a dividend or other
distribution, in Common Stock, on any class of Capital Stock of the Company,
(ii) subdivide the outstanding Common Stock into a greater number of shares by
any means or (iii) combine the outstanding Common Stock into a smaller number
of shares by any means (including, without limitation, a reverse stock split),
then in each such case the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Note thereafter
surrendered for conversion shall be entitled to receive the number of shares
of Common Stock that such Holder would have owned or have been entitled to
receive upon the happening of such event had such Note been converted
immediately prior to the relevant record date or, if there is no such record
date, the effective date of such event. An adjustment made pursuant to this
Section 1204(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or
distribution or shall become effective immediately after the effective date of
such subdivision or combination, as the case may be.
(b) If the Company shall (i) issue or distribute, at a price
per share less than the Current Market Price per share of such Capital Stock
on the date of such issuance or distribution, Capital Stock (excluding an
issuance or distribution of Common Stock described in Section 1204(a) above
and any issuance or distribution to a holder of Senior Indebtedness issued or
distributed in order to induce such holder to extend such credit to the
Company) or (ii) issue or distribute rights, warrants, options or convertible
or exchangeable securities entitling the holder thereof to subscribe for,
purchase, convert into or exchange for Capital Stock at a price per share less
than the Current Market Price per share of such Capital Stock on the date of
issuance or distribution (excluding an issuance or distribution under any
stock-based employee compensation plan now existing or hereafter adopted and
any issuance or distribution to a holder of Senior Indebtedness issued or
distributed in order to induce such holder to extend such credit to the
Company), then, in each such case, at the earliest of (A) the date the Company
enters into a firm contract for such issuance or distribution or (B) the date
of actual issuance or distribution of any such Capital Stock or any such
rights, warrants, options or convertible or exchangeable securities, the
Conversion Price shall be reduced by multiplying the Conversion Price in
effect immediately prior to such earliest date by:
(x) if such Capital Stock is Common Stock, a
fraction the numerator of which is the number of shares of
Common Stock outstanding on such earliest date plus the
number of shares of Common Stock which could be purchased at
the Current Market Price per share of Common Stock on the
date of such issuance or
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distribution with the aggregate consideration (based on the
Fair Market Value thereof) received or receivable by the
Company either (A) in connection with such issuance or
distribution or (B) upon the conversion, exchange, purchase
or subscription of all such rights, warrants, options or
convertible or exchangeable securities (the "Aggregate
Consideration"), and the denominator of which is the number
of shares of Common Stock outstanding on such earliest date
plus the number of shares of Common Stock to be so issued or
distributed or to be issued upon the conversion, exchange,
purchase or subscription of all such rights, warrants,
options or convertible or exchangeable securities; or
(y) if such Capital Stock is other than Common
Stock, a fraction the numerator of which is the Current
Market Price per share of Common Stock on such earliest date
minus an amount equal to (A) the difference between of (1)
the Current Market Price per share of such Capital Stock
multiplied by the number of shares of such Capital Stock to
be so issued and (2) the Aggregate Consideration, divided by
(B) the number of shares of Common Stock outstanding on such
date, and the denominator of which is the Current Market
Price per share of Common Stock on such earliest date.
The adjustments contemplated by Section 1204(b) shall be
made successively whenever any such Capital Stock, rights, warrants, options
or convertible or exchangeable securities are so issued or distributed. In
determining whether any rights, warrants, options or convertible or
exchangeable securities entitle the holders thereof to subscribe for,
purchase, convert into or exchange for shares of such Capital Stock at less
than such Current Market Price, there shall be taken into account the Fair
Market Value of any consideration received or receivable by the Company for
such rights, warrants, options or convertible or exchangeable securities
(including, upon exercise thereof). If any right, warrant, option or
convertible or exchangeable securities, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to Section 1204(b), shall expire
and shall not have been exercised, the Conversion Price shall immediately upon
such expiration be recomputed to the Conversion Price which would have been in
effect if such right, warrant, option or convertible or exchangeable
securities had never been distributed or issued. Notwithstanding anything
contained in this paragraph to the contrary, the issuance of Capital Stock
upon the exercise of such rights, warrants or options or the conversion or
exchange of such convertible or exchangeable securities will not cause an
adjustment in the Conversion Price if no such adjustment would have been
required at the time such right, warrant, option or convertible or
exchangeable security was issued or distributed; provided, however, that, if
the consideration payable upon such exercise, conversion or exchange and/or
the Capital Stock receivable thereupon are changed after the time of the
issuance or distribution of such right, warrant, option or convertible or
exchangeable security, then such change shall be deemed to be the expiration
thereof without having been exercised and the issuance or distribution of new
options, rights, warrants or convertible or exchangeable securities.
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Notwithstanding anything contained in this Indenture to the
contrary, options, rights or warrants issued or distributed by the Company,
including options, rights or warrants distributed prior to the date of this
Indenture, to holders of Common Stock generally which, until the occurrence of
a specified event or events (a "Trigger Event"), (i) are deemed to be
transferred with Common Stock, (ii) are not exercisable and (iii) are also
issued on a pro rata basis with respect to future issuances of Common Stock,
shall be deemed not to have been issued or distributed for purposes of this
Section 1204 (and no adjustment to the Conversion Price under this Section
1204 will be required) until the occurrence of the earliest Trigger Event.
Upon the occurrence of a Trigger Event, such options, rights or warrants shall
continue to be deemed not to have been issued or distributed for purposes of
this Section 1204 (and no adjustment to the Conversion Price under this
Section 1204 will be required) if and for so long as each Holder who
thereafter converts such Holder's Notes shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable upon such
conversion, a number of such options, rights or warrants, as the case may be,
equal to the number of options, rights or warrants to which a holder of the
number of shares of Common Stock equal to the number of shares of Common Stock
issuable upon conversion of such Holder's Notes is entitled to receive at the
time of such conversion in accordance with the terms and provisions of and
applicable to such options, rights or warrants. Upon the expiration of any
such options, rights or warrants or at such time, if any, as a Holder is not
entitled to receive such options, rights or warrants upon conversion of such
Holder's Notes, an adjustment (if any is required) to the Conversion Price
shall be made in accordance with Section 1204(b) with respect to the issuance
of all such options, rights and warrants as of the date of issuance thereof,
but subject to the provisions of the preceding paragraph.
If any such option, right or warrant, including any such
options, rights or warrants distributed prior to the date of this Indenture,
are subject to events, upon the occurrence of which such options, rights or
warrants become exercisable to purchase different securities, evidences of
indebtedness, cash, Properties or other assets or different amounts thereof,
then, subject to the preceding provisions of this paragraph, the date of the
occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new options, rights or warrants
with such new purchase rights (and a termination or expiration of the existing
options, rights or warrants without exercise thereof). In addition, in the
event of any distribution (or deemed distribution) of options, rights or
warrants, or any Trigger Event or other event of the type described in the
preceding sentence, that required (or would have required but for the
provisions of Section 1204(e) or this paragraph) an adjustment to the
Conversion Price under this Section 1204 and such options, rights or warrants
shall thereafter have been redeemed or repurchased without having been
exercised, then the Conversion Price shall be adjusted upon such redemption or
repurchase to give effect to such distribution, Trigger Event or other event,
as the case may be, as though it had instead been a cash distribution, equal
on a per share basis to the result of the aggregate redemption or repurchase
price received by holders of such options, rights or warrants divided by the
number of shares of Common Stock outstanding as of the date of such repurchase
or redemption, made to holders of Common Stock generally as of the date of
such redemption or repurchase.
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(c) If the Company shall pay or distribute, as a dividend or
otherwise, generally to holders of Common Stock or any class or series of
Capital Stock which is convertible into or exercisable or exchangeable for
Common Stock any assets, Properties or rights (including, without limitation,
evidences of indebtedness of the Company, any Subsidiary or any other Person,
cash or Capital Stock or other securities of the Company, any Subsidiary or
any other Person, but excluding payments and distributions as described in
Section 1204(a) or 1204(b), dividends and distributions in connection with the
liquidation, dissolution or winding up of the Company in its entirety and
distributions consisting solely of cash described in Section 1204(d)), then in
each such case the Conversion Price shall be reduced by multiplying the
Conversion Price in effect immediately prior to the date of such payment or
distribution by a fraction, the numerator of which is the Current Market Price
per share of Common Stock on the record date for the determination of
stockholders entitled to receive such payment or distribution less the Fair
Market Value per share on such record date of the assets, Properties or rights
so paid or distributed, and the denominator of which is the Current Market
Price per share of Common Stock on such record date. Such adjustment shall
become effective immediately after such record date. For purposes of this
Section 1204(c) such Fair Market Value per share shall equal
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the aggregate Fair Market Value on such record date of the assets, Properties
or rights so paid or distributed divided by the number of shares of Common
Stock outstanding on such record date.
(d) If the Company shall, by dividend or otherwise, make a
distribution (other than in connection with the liquidation, dissolution or
winding up of the Company in its entirety), generally to holders of Common
Stock or any class or series of Capital Stock which is convertible into or
exercisable or exchangeable for Common Stock, consisting solely of cash where
(x) the sum of (i) the aggregate amount of such
cash plus (ii) the aggregate amount of all cash so
distributed (by dividend or otherwise) to such holders
within the 12-month period ending on the record date for
determining stockholders entitled to receive such
distribution with respect to which no adjustment has been
made to the Conversion Price pursuant to this Section
1204(d);
exceeds
(y) 10% of the product of (1) the Current Market
Price per share of Common Stock on such record date times
(2) the number of shares of Common Stock outstanding on such
record date, then the Conversion Price shall be reduced,
effective immediately prior to the opening of business on
the day following such record date, by multiplying the
Conversion Price in effect immediately prior to the close of
business on the day prior to such record date by a fraction,
the numerator of which is the Current Market Price per share
of Common Stock on such record date less the aggregate
amount of cash per share so distributed and the denominator
of which is such Current Market Price;
provided, however, that, if the aggregate amount of cash per share is equal to
or greater than such Current Market Price, then, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have
the right to receive upon conversion (with respect to each share of Common
Stock issued upon such conversion and in addition to the Common Stock issuable
upon conversion) the aggregate amount of cash per share such Holder would have
received had such Holder's Note been converted immediately prior to such
record date. In no event shall the Conversion Price be increased pursuant to
this Section 1204(d); provided, however, that if such distribution is not so
made, the Conversion Price shall be adjusted to be the Conversion Price which
would have been in effect if such distribution had not been declared. For
purposes of this paragraph of this Section 1204(d), such aggregate amount of
cash per share shall equal such sum set forth in Section 1204(e)(x) divided by
the number of shares of Common Stock outstanding on such record date.
(e) The provisions of this Section 1204 shall similarly
apply to all successive events of the type described in this Section 1204.
Notwithstanding anything contained herein to the contrary, no adjustment in
the Conversion Price shall be required unless such adjustment
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would require an increase or decrease of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of
this Section 1204(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article Twelve shall be made by the Company and shall be made to the nearest
cent or to the nearest one hundredth of a share, as the case may be, and the
Trustee shall be entitled to rely conclusively thereon. Notwithstanding
anything contained in this Section 1204 to the contrary, the Company shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by this Section 1204, as would, in the sole discretion of the
Company, be in the best interests of the Company, which determination shall be
conclusive. Except as provided in this Article Twelve, no adjustment in the
Conversion Price will be made for the issuance of Common Stock or any
securities convertible into or exchangeable for Common Stock or carrying the
right to purchase Common Stock or any securities so convertible or
exchangeable.
(f) Whenever the Conversion Price is adjusted as provided
herein, the Company shall promptly file with the Trustee and any Conversion
Agent other than the Trustee an Officers' Certificate setting forth the
Conversion Price in effect after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Promptly after delivery of
such Officers' Certificate, the Company shall give or cause to be given to
each Holder a notice of such adjustment of the Conversion Price setting forth
the adjusted Conversion Price and the date on which such adjustment becomes
effective.
(g) Notwithstanding anything contained herein to the
contrary, in any case in which this Section 1204 provides that an adjustment
in the Conversion Price shall become effective immediately after a record date
for an event, the Company may defer until the occurrence of such event (i)
issuing to the Holder of any Note converted after such record date and before
the occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event over
and above the number of shares of Common Stock issuable upon such conversion
before giving effect to such adjustment and (ii) paying to such Holder any
amount in cash in lieu of any fractional share of Common Stock pursuant to
Section 1203.
SECTION 1205. Effect of Reclassification, Consolidation, Merger
or Sale.
In the event of (i) any reclassification (including, without
limitation, a reclassification effected by means of an exchange or tender
offer by the Company or any Subsidiary) or change of outstanding Common Stock
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination),
(ii) any consolidation, merger or combination of the Company with another
corporation as a result of which holders of Common Stock shall be entitled to
receive securities or other Property (including cash) with respect to or in
exchange for Common Stock or (iii) any sale or conveyance of the Property of
the Company as, or substantially as, an entirety to any other corporation as a
result of which holders of Common Stock shall be entitled to receive
securities or other Property (including cash) with respect to or in exchange
for Common Stock,
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then the Company or the successor or purchasing corporation, as the case may
be, shall enter into a supplemental indenture providing that each Note shall
be convertible into the kind and amount of securities or other Property
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance which the Holder of such Note would
have received if such Note had been converted immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Twelve. Whenever a supplemental indenture is
entered into as provided herein, the Company shall promptly file with the
Trustee and any Conversion Agent other than the Trustee an Officers'
Certificate setting forth a brief statement of the facts requiring such
supplemental indenture. Promptly after delivery of such Officers' Certificate,
the Company shall give or cause to be given to each Holder a notice of the
execution of such supplemental indenture. The provisions of this Section 1205
shall similarly apply to all successive events of the type described in this
Section 1205.
SECTION 1206. Taxes on Shares Issued.
The issuance of a certificate or certificates on conversions
of Notes shall be made without charge to the Holders of such Notes for any tax
or charge with respect to the issuance thereof. The Company shall not,
however, be required to pay any tax or charge which may be payable with
respect to any transfer involved in the issuance and delivery of a certificate
or certificates in any name other than that of the Holders of such Notes, and
the Company shall not be required to issue or deliver any such certificate or
certificates unless and until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or charge or
shall have established to the satisfaction of the Company that such tax or
charge has been paid.
SECTION 1207. Reservation of Shares; Shares to Be Fully Paid;
Compliance with Government Requirements; Listing of
Common Stock.
The Company shall reserve, out of its authorized but
unissued Common Stock or its Common Stock held in treasury, sufficient shares
of Common Stock to provide for the conversion of all of the Notes that are
outstanding from time to time. Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par value, if any, of
the Common Stock issuable upon conversion of Notes, the Company will take all
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue Common Stock at such
adjusted Conversion Price. The Company covenants that all Common Stock which
may be issued upon conversion of Notes will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issuance and delivery thereof.
The Company covenants that if any Common Stock issued or delivered upon
conversion of Notes hereunder requires registration with or approval of any
governmental authority under any applicable federal or state law (excluding
federal or state securities laws) before such Common Stock may be lawfully
issued, the Company will in good faith and as expeditiously as possible
endeavor to
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secure such registration or approval, as the case may be. The Company
covenants that it will not take any action which would cause the exemption
from the registration requirement of Section 5 of the Securities Act afforded
by Section 3(a)(9) of the Securities Act to be unavailable with respect to the
issuance and delivery of Common Stock upon the conversion of Notes in
accordance with this Indenture.
SECTION 1208. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any
time be under any duty or responsibility to any Holder to determine whether
any fact exists which may require any adjustment of the Conversion Price or
other adjustment, or with respect to the nature, extent or calculation of any
such adjustment when made, or with respect to the method employed or herein or
in any supplemental indenture provided to be employed, in making any such
adjustment, or with respect to the correctness thereof. The Trustee and any
other Conversion Agent shall not be accountable with respect to the validity,
value, kind or amount of any item at any time issued or delivered upon the
conversion of any Note, and neither the Trustee nor any other Conversion Agent
makes any representations with respect thereto. Subject to Section 603,
neither the Trustee nor any Conversion Agent shall be responsible for any
failure of the Company to issue, transfer or deliver any item upon the
surrender of any Note for conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article Twelve.
Without limiting the generality of the foregoing, neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to Section 1205, but, subject to the provisions of Section 603,
may accept as conclusive evidence of the correctness of any such provisions,
and shall be protected in relying upon, the Officers' Certificate with respect
thereto.
SECTION 1209. Notice to Holders Prior to Certain Actions.
In the event that: (a) the Company shall declare or
authorize any event which could result in an adjustment in the Conversion
Price under Section 1204 or require the execution of a supplemental indenture
under Section 1205; or (b) the Company shall authorize the granting to the
holders of Common Stock generally of rights, options or warrants to subscribe
for or purchase any shares of any class or series of Capital Stock of the
Company or any Subsidiary or any other rights, options or warrants, the
reclassification of Common Stock (other than a subdivision or combination of
outstanding Common Stock, or a change in par value, or from par value to no
par value, or from no par value to par value), the combination, consolidation
or merger of the Company for which approval of any stockholders of the Company
is required, the sale or transfer of all or substantially all of the assets of
the Company or the voluntary or involuntary dissolution, liquidation or
winding-up of the Company in whole or in part; then, in each such case, the
Company shall file or cause to be filed with the Trustee and shall give or
cause to be given to each Holder, as promptly as possible but in any event at
least 15 days prior to the applicable date hereinafter specified, a notice
stating the date on which a record is to be taken for the purpose of
determining the holders of outstanding Common Stock entitled to participate in
such event, the date on which such event is expected to become
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effective or occur and the date on which it is expected that holders of
outstanding Common Stock of record shall be entitled to surrender their
shares, or receive any items, in connection with such event. Failure to give
such notice, or any defect therein, shall not affect the legality or validity
of such event.
ARTICLE THIRTEEN
SUBORDINATION OF NOTES
SECTION 1301. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Notes,
by such Holder's acceptance thereof, likewise covenants and agrees, that the
indebtedness evidenced by the Notes and the payment of the Principal thereof
and interest thereon shall be subordinate and subject in right of payment, to
the extent and in the manner hereinafter set forth, to the prior payment in
full of all Senior Indebtedness.
No provisions of this Article Thirteen shall prevent the
occurrence of any Event of Default hereunder.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture or in the Notes is intended to or shall impair, as among the
Company, its creditors and the Holders, the right, which is absolute and
unconditional, of a Holder to convert any Note in accordance with Article
Twelve.
SECTION 1302. No Payment on Notes in Event of Default on Senior
Indebtedness.
(a) In the event of any default (a "Payment Default") in the
payment of Principal of or interest on any Designated Senior Debt beyond any
applicable grace period with respect thereto (whether at maturity, on account
of mandatory redemption or prepayment, upon acceleration or otherwise), then
no payment shall be made by the Company with respect to the Principal of or
interest on the Notes (other than in the form of Junior Securities) or to
acquire any of the Notes (other than in the form of Junior Securities) unless
and until such Payment Default shall have been cured or waived.
In the event of receipt by the Trustee of written notice (a
"Payment Blockage Notice") that an event of default other than a Payment
Default with respect to any Designated Senior Debt shall have occurred and be
continuing, the occurrence of which permits the holders of such Designated
Senior Debt (or a trustee on behalf of the holders thereof) to declare such
Designated Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable (a "Nonpayment Default"), then no
payment shall be made by the Company with respect to the Principal of or
interest on the Notes (other than in the form of Junior Securities) or to
acquire any of the Notes (other than in the form of Junior Securities) for a
period (a "Payment Blockage Period") commencing upon receipt by the Trustee of
a Payment
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Blockage Notice and ending on the earliest of (a) the date on which such
Nonpayment Default is cured or waived or ceases to exist, (b) the date on
which such Designated Senior Date is discharged or repaid in full in cash or
(c) 150 days after the date on which the applicable Payment Blockage Notice is
received (or earlier if such Payment Blockage Notice is terminated by written
notice to the Trustee and the Company from the holders of such Designated
Senior Date or any trustee, agent or other representative acting on behalf of
such holders). Subject to the first sentence of this Section 1302(a), payments
on the Notes shall be resumed upon the expiration of such Payment Blockage
Period. Not more than one Payment Blockage Period may be commenced during any
period of 360 consecutive days and no default with respect to Designated
Senior Debt that existed or was continuing on the date of commencement of any
such Payment Blockage Period shall be, or be made, the basis for a subsequent
Payment Blockage Period (whether or not within a period of 360 consecutive
days) unless such default shall have been cured or waived for a period of not
less than 120 consecutive days.
(b) The provisions of this Section 1302 shall not apply to
any payment with respect to which Section 1303 would be applicable.
SECTION 1303. Distribution on Dissolution, Liquidation and
Reorganization.
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, (b) any payment or distribution of
assets or securities of the Company of any kind or character, whether in cash,
Property or securities, to creditors upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company, whether
voluntary or involuntary and whether in bankruptcy, insolvency or receivership
proceedings or (c) any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company, or upon other
proceedings:
(a) all Principal of and interest due on all
Senior Indebtedness shall first be paid in full, or due
provision made for such payment, in accordance with the
terms of such Senior Indebtedness, before any payment is
made on account of the Principal of or interest on the
indebtedness evidenced by the Notes other than in the form
of Junior Securities, or before the Holders of the Notes
shall be entitled to retain any assets so paid or
distributed in respect thereof other than Junior Securities;
and
(b) any payment or distribution of assets or
securities of the Company of any kind or character, whether
in cash, Property or securities (other than Junior
Securities), to which the Holders of the Notes or the
Trustee for their benefit would be entitled except for the
provisions of this Section 1303, shall be paid or delivered
by the Company or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such
payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness
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remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to
the Holders of the Notes.
The Company shall give prompt written notice to the Trustee
of any dissolution, winding up, liquidation or reorganization of the Company
within the meaning of this Section 1303.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section 1303 if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article Eight.
SECTION 1304. Payment to Holders of Senior Indebtedness.
Subject to the provisions of Section 1306, in the event
that, notwithstanding the provisions of Section 1302 or Section 1303, any
payment or distribution of assets or securities (other than Junior Securities,
as applicable) of the Company of any kind or character, whether in cash,
Property or securities, shall be received by the Trustee or the Holders of the
Notes from the Company in violation of such provisions, such payment or
distribution shall forthwith be paid over by the Trustee or such Holders
directly to holders of Senior Indebtedness or their representatives or the
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, for application to the payment of
all Senior Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in accordance with the terms of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness.
Upon any payment or distribution of assets or securities of
the Company referred to in Sections 1302 and 1303, the Trustee and the Holders
of the Notes shall be entitled to rely upon any order or decree of a court of
competent jurisdiction, or upon any certificate of any liquidating trustee or
agent or other Person making any payment or distribution to the Trustee or to
the Holders of the Notes, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness, the amount thereof for payment thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Thirteen. 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 Indebtedness to participate in any payment or distribution
referred to in Sections 1302 and 1303,
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the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under Sections 1302 and 1303, 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 1305. Subrogation.
Subject to the payment in full of all Senior Indebtedness,
the Holders shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article Thirteen (equally and ratably with the holders of all
indebtedness of the Company which is not Senior Indebtedness and which is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, Property
and securities applicable to the Senior Indebtedness until the Principal of
and interest on the Notes shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, Property or securities to which the Holders 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 Indebtedness by Holders or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders be
deemed to be a payment or distribution by the Company to or on account of
Senior Indebtedness. The provisions of this Article Thirteen are and are
intended solely for the purpose of defining the relative rights of the Holders
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article Thirteen or elsewhere in this Indenture or
in the Notes is intended to or shall: (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article Thirteen of the holders of Senior
Indebtedness, is intended to rank equally with all other general obligations
of the Company), to pay to the Holders the Principal or Repurchase Price, if
any, of and interest on the Notes 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 and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
Thirteen of the holders of Senior Indebtedness to receive cash, Property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1306. Payment on Notes Permitted.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture, or in any of the Notes, shall prevent the Company from making
payment of the Principal of or interest on the Notes, at any time, except
under the conditions described in Section 1302 and except during the pendency
of any dissolution, winding up, liquidation or reorganization of the Company
within the meaning of Section 1303. Nothing contained in this Article Thirteen
or
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elsewhere in this Indenture or in any of the Notes shall prevent the
application by the Trustee of any moneys deposited with it hereunder for such
purpose to the payment of or on account of the Principal of or interest on the
Notes, unless, prior to the Business Day next preceding the date upon which
such Principal shall have become payable, or, in the case of any payment of or
on account of interest unless, prior to two Business Days before the date upon
which such interest shall have become payable, the Trustee shall have received
written notice, directed to it at its Corporate Trust Office, from the Company
or any holder of Senior Indebtedness or any trustee therefor of the existence
of any of the conditions described in Section 1302 or of any dissolution,
winding up, liquidation or reorganization of the Company within the meaning of
Section 1303.
SECTION 1307. Authorization of Holders to Trustee to Effect
Subordination.
Each Holder of Notes 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
Thirteen and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1308. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Thirteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive or be
construed to deprive the Trustee of its rights as such holder.
SECTION 1309. Notices 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 Notes. Notwithstanding the
provisions of this Article Thirteen or any other provisions of this Indenture,
the Trustee shall not be charged with the knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes unless and until the Trustee shall have received written
notice thereof, directed to it at its Corporate Trust Office, from the Company
or any holder of Senior Indebtedness or any trustee thereof; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if a Trust Officer of the Trustee shall not
have received, at least three Business Days prior to the date upon which by
the terms hereof any such money may become payable for any purpose, the notice
with respect to such money provided for in this Section 1309, 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 three Business Days prior to
such date.
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Subject to the provisions of Section 601, 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 Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). 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 Indebtedness 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 Indebtedness 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
Thirteen, 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 1310. No Fiduciary Duty by Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Notes or to the Company or to any other Person cash, Property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article Thirteen or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
SECTION 1311. Paying Agent Treated as Trustee.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article Thirteen shall in such case (unless the
context shall otherwise require) 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 Thirteen in place of the
Trustee.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution at any
time on or after _________, 2002 or at any time after a notice of redemption
has been delivered to the Holders in accordance with Article Eleven, elect to
have either Section 1402 or Section 1403 be applied to all Outstanding Notes
upon compliance with the conditions set forth below in this Article Fourteen.
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SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1402, the Company shall be deemed to have been
discharged from its obligations with respect to all the Outstanding Notes on
the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
Outstanding Notes except for (i) the rights of Holders of Outstanding Notes to
receive payments out of amounts deposited in trust with the Trustee (as set
forth in Section 1404) in respect of the Principal of and interest on such
Notes when such payments are due, (ii) the right of Holders to convert Notes
in accordance with Article Twelve, (iii) the Company's obligations with
respect to the Notes concerning issuing temporary Notes, registration of
Notes, mutilated, destroyed, lost or stolen Notes, and the maintenance of an
office or agency for payment and money for security payments held in trust,
(iv) the rights, powers, trusts, duties and immunities of the Trustee, (v)
Article Eleven, if such defeasance will occur prior to __________, 2002 and
(vi) this Article Fourteen.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise under Section 1401 of the option
applicable to this Section 1403, the Company shall be released from its
obligations under any covenant in Section 801 and in Sections 1005 and 1008
with respect to the Outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent, declaration or Act (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a default or an Event of Default under Section 501(4), but,
except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1402 or Section 1403 (except where indicated as applying to one
of such Sections) to the Outstanding Notes:
(i) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
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making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Notes, (A) cash in United States dollars in
an amount, or (B) U.S. Government Obligations which through
the scheduled payment of Principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the Principal of and interest
on the Outstanding Notes on the Stated Maturity (or
Redemption Date, if applicable) of such Principal (or on any
date (such date being referred to as the "Defeasance
Redemption Date") if when exercising under Section 1401
either its option applicable to Section 1402 or its option
applicable to Section 1403, the Company shall have delivered
to the Trustee an irrevocable notice to redeem all of the
Outstanding Notes on the Defeasance Redemption Date and
interest); provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds
of such U.S. Government Obligations to said payments with
respect to the Notes;
(ii) In the case of an election under Section
1402, the Company shall have delivered to the Trustee an
opinion of independent counsel in the United States of
America stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such
opinion of counsel in the United States of America shall
confirm that, the Holders of the Outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject
to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such defeasance had not occurred;
(iii) In the case of an election under Section
1403, the Company shall have delivered to the Trustee an
opinion of independent counsel in the United States of
America to the effect that the Holders of the Outstanding
Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not
occurred;
(iv) No default or Event of Default with respect
to the Notes shall have occurred and be continuing on the
date of such deposit or, with respect to
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Section 501(6) or Section 501(7), at any time during the
period ending on the 91st day after the date of deposit, as
evidenced to the Trustee by an Officer's Certificate
delivered to the Trustee concurrently with such deposit;
(v) Such defeasance or covenant defeasance shall
not cause the Trustee to have a conflicting interest with
respect to any securities of the Company;
(vi) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the deposit
shall not result in the Company's, the Trustee's or the
trust's being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended;
(vii) The Company shall have delivered to the
Trustee an opinion of independent counsel to the effect that
after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(viii) The Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit
was not made by the Company with the intent of preferring
the Holders of the Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company;
(ix) 91 days shall have passed after the deposit
is made and during such 91-day period no event of Default
specified in Section 501(6) or 501(7) shall occur and be
continuing at the end of such period;
(x) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent provided for
relating to either the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be)
have been complied with;
(xi) Such defeasance does not result in a breach
or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or
by which it is bound, and is not prohibited by Article 11,
as evidenced to the Trustee by an Officers' Certificate
delivered to the Trustee concurrently with such deposit;
(xii) The Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such deposit, defeasance and discharge does not
conflict with the applicable provisions of this Indenture;
and
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(xiii) The Company shall have notified each Holder
not more than 60 nor less than 30 days prior to the date of
such defeasance or covenant defeasance of the effective date
of such defeasance or covenant defeasance.
SECTION 1405. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this Article Fourteen. It shall
apply the deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment
of Principal of and interest on the Notes. Money and securities so held in
trust are not subject to Article Thirteen.
SECTION 1406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
in accordance with this Article Fourteen by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Fourteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with this
Article Fourteen; provided, however that if the Company makes any payment of
interest on or Principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
SECTION 1407. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1407 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
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ARTICLE FIFTEEN
COLLATERAL AND SECURITY
SECTION 1501. Proceeds Pledge and Escrow Agreement.
The due and punctual payment of the first four interest
payments on the Notes (other than the Excess Interest Amount, if any) when and
as the same shall be due and payable, whether on an Interest Payment Date at
Maturity, by acceleration, repurchase, redemption otherwise, and interest on
the Notes and performance of all other obligations of the Company to the
Holders of Notes or the Trustee under this Indenture and the Notes, according
to the terms hereunder or thereunder, shall be secured as provided in the
Proceeds Pledge and Escrow Agreement which the Company, has entered into
simultaneously with the execution of this Indenture and which is attached as
Exhibit A hereto. Each Holder of Notes, by its acceptance thereof, consents
and agrees to the terms of the Proceeds Pledge and Escrow Agreement
(including, without limitation, the provisions providing for foreclosure and
release of Escrow Funds) as the same may be in effect or may be amended from
time to time in accordance with its terms and authorizes and directs the
Trustee to enter into the Proceeds Pledge and Escrow Agreement and to perform
its obligations and exercise its rights thereunder in accordance therewith.
The Company shall deliver to the Trustee copies of all documents delivered
pursuant to the Proceeds Pledge and Escrow Agreement, and shall do or cause to
be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Proceeds Pledge and Escrow Agreement, to
assure and confirm to the Trustee that the security interest in the Funds
contemplated hereby, by the Proceeds Pledge and Escrow Agreement or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Notes secured
hereby, according to the intent and purposes herein expressed. The Company
shall take, or shall cause its Subsidiaries to take, upon request of the
Trustee, any and all actions reasonably required to cause the Proceeds Pledge
and Escrow Agreement to create and maintain, as security for the Obligations
of the Company hereunder, a valid and enforceable perfected first priority
Lien on all the Pledged Collateral, in favor of the Trustee for the benefit of
the Holders of Notes, superior to and prior to the rights of all the Persons
and subject to no other Liens than Permitted Liens.
SECTION 1502. Recording and Opinions.
(a) The Company shall furnish to the Trustee simultaneously
with the execution and delivery of this Indenture an Opinion of Counsel either
(i) stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended
to be created by the Proceeds Pledge and Escrow Agreement, and reciting with
respect to the security interests in the Pledged Collateral, the details of
such action, or (ii) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
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(b) The Company shall furnish to the Trustee on ________ 1
in each year beginning with _________ 1, 1998, an Opinion of Counsel, dated as
of such date, either (i) (A) stating that, in the opinion such counsel, action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and refiling of all supplemental indentures,
financing statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Proceeds Pledge and
Escrow Agreement and reciting with respect to the security interests in the
Pledged Collateral the details of such action or referring to prior Opinions
of Counsel in which such details are given, (B) stating that, based on
relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully
to preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the Trustee
hereunder and under the Proceeds Pledge and Escrow Agreement with respect to
the security interests in the Pledged Collateral, or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain such Lien and
assignment.
(c) The Company shall otherwise comply with the provisions
of ss.3 14(b) of the Trust Indenture Act.
SECTION 1503. Release of Pledged Securities or Collateral Funds.
(a) Subject to subsections (b), (c) and (d) of this Section
15.03, Pledged Collateral may be released from the Lien and security interest
created by the Proceeds Pledge and Escrow Agreement at any time or from time
to time in accordance with the provisions of the Proceeds Pledge and Escrow
Agreement.
(b) No Pledged Collateral shall be released from the Lien
and security interest created by the Proceeds Pledge and Escrow Agreement
pursuant to the provisions of the Proceeds Pledge and Escrow Agreement unless
there shall have been delivered to the Trustee the certificate required by
this Section 15.03.
(c) At any time when a Default or Event of Default shall
have occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee has
knowledge of such Default or Event of Default, no release of Pledged
Collateral pursuant to the provisions of the Proceeds Pledge and Escrow
Agreement shall be effective as against the Holders of Notes.
(d) The release of any Pledged Collateral from the terms
this Indenture and the Proceeds Pledge and Escrow Agreement shall not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Pledged Collateral is released
pursuant to the terms of the Proceeds Pledge and Escrow Agreement. To the
extent applicable, the Company shall cause ss.313(b) of the Trust Indenture
Act relating to the release of property or securities from the Lien and
security interest of the Proceeds Pledge and Escrow Agreement and relating to
the substitution therefor of any property or securities to be subjected
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to the Lien and security interest of the Proceeds Pledge and Escrow Agreement,
to be complied with. Any certificate or opinion required by ss. 314(d) of the
Trust Indenture Act may be made by an Officer of the Company except in cases
where ss. 314(d) of the Trust Indenture Act requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert selected or approved by the Trustee in the
exercise of reasonable care.
SECTION 1504. Certificate of the Company.
(a) Company shall furnish to the Trustee, prior to each
proposed release of Pledged Collateral pursuant to the Proceeds Pledge and
Escrow Agreement, (i) all documents required by ss. 314(d) of the Trust
Indenture Act and (ii) an Opinion of Counsel, which may be rendered by
internal counsel to the Company, to the effect that such accompanying
documents constitute all documents required by ss.314(d) of the Trust
Indenture Act and (ii) an Opinion of Counsel, which may, to the extent
permitted by Sections 6.01 and 6.03 hereof, accept as conclusive evidence of
compliance with the foregoing provisions the appropriate statements contained
in such documents and such Opinion of Counsel.
SECTION 1506. Authorization of Actions to Be Taken by the Trustee
under the Proceeds Pledge and Escrow Agreement.
Subject to the provisions of Section 6.01 and 6.03 hereof,
the Trustee may, in its sole discretion and without the consent of the Holders
of Notes, take, on behalf of the Holders of Notes, all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Proceeds Pledge and Escrow Agreement and (b) collect and receive any and all
amounts payable in respect of the Obligations of the Company hereunder. The
Trustee shall have power to institute and maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Pledged Collateral
by any acts that may be unlawful or in violation of the Proceeds Pledge and
Escrow Agreement or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Notes in the Pledged Collateral (including power
to institute and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of Notes
or of the Trustee).
SECTION 1506. Authorization of Receipt of Funds by the Trustee
under the Proceeds Pledge and Escrow Agreement.
The Trustee is authorized to receive any funds for the
benefit of the Holders of Notes distributed under the Proceeds Pledge and
Escrow Agreement, and to make further distributions of such funds to the
Holders of Notes according to the provisions of the Proceeds Pledge and Escrow
Agreement and this Indenture.
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SECTION 1507. Termination of Security Interest.
Upon the payment in full of all Obligations of the Company
under this Indenture and the Notes, or upon Defeasance, the Trustee shall
release the Liens pursuant to this Indenture and the Proceeds Pledge and
Escrow Agreement.
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.
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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.
IAT MULTIMEDIA, INC.
{seal}
By
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Name:
Title:
ATTEST:
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Name:
Title:
THE BANK OF NEW YORK
{seal}
By
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Name:
Title:
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