EXHIBIT 4.3
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TOTAL RENAL CARE HOLDINGS, INC.,
Issuer,
and
United States Trust Company of New York,
Trustee
_________________
INDENTURE
Dated as of November 18, 1998
_________________
$345,000,000
7% Convertible Subordinated Notes due 2009
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CROSS-REFERENCE TABLE
TIA
Indenture
Section Section
- ------- -------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8;
7.10;
14.2
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 14.3
(c) 14.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6;
14.2
(d) 7.6
314(a) 4.5;
4.6
14.2
(b) N.A.
(c)(1) 2.2;
7.2;
14.4
(c)(2) 7.2;
14.4
(c)(3) N.A.
(d) N.A.
ix
(e) 14.5
(f) N.A.
315(a) 7.1(b)
(b) 7.5;
14.2
(c) 7.1(a)
(d) 2.8;
6.11;
7.1(c)
(e) 6.13
316(a)(last sentence) 2.9
(a)(1)(A) 6.11
(a)(1)(B) 6.12
(a)(2) N.A.
(b) 6.12;
6.7;
6.8
(c) 1.1
317(a)(1) 6.3
(a)(2) 6.4
(b) 2.4
318(a) 14.1
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed a part
of the Indenture.
x
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE........................................................ 1
Section 1.1. Definitions................................................................................ 1
Section 1.2. Incorporation by Reference of TIA.......................................................... 12
Section 1.3. Rules of Construction...................................................................... 13
ARTICLE II. THE SECURITIES.................................................................................. 14
Section 2.1. Form and Dating............................................................................ 14
Section 2.2. Execution and Authentication............................................................... 14
Section 2.3. Registrar and Paying Agent................................................................. 15
Section 2.4. Paying Agent to Hold Assets in Trust....................................................... 16
Section 2.5. Securityholder Lists....................................................................... 16
Section 2.6. Transfer and Exchange...................................................................... 17
Section 2.7. Replacement Securities..................................................................... 24
Section 2.8. Outstanding Securities..................................................................... 25
Section 2.9. Treasury Securities........................................................................ 26
Section 2.10. Temporary Securities....................................................................... 26
Section 2.11. Cancellation............................................................................... 26
Section 2.12. Defaulted Interest......................................................................... 27
Section 2.13. CUSIP Numbers.............................................................................. 28
Section 2.14. Deposit of Moneys.......................................................................... 29
ARTICLE III. REDEMPTION..................................................................................... 29
Section 3.1. Right of Redemption........................................................................ 29
Section 3.2. Notices to Trustee......................................................................... 29
Section 3.3. Selection of Securities to Be Redeemed..................................................... 30
Section 3.4. Notice of Redemption....................................................................... 30
Section 3.5. Effect of Notice of Redemption............................................................. 32
Section 3.6. Deposit of Redemption Price................................................................ 32
Section 3.7. Securities Redeemed in Part................................................................ 33
ARTICLE IV. COVENANTS....................................................................................... 33
Section 4.1. Payment of Securities...................................................................... 33
Section 4.2. Maintenance of Office or Agency............................................................ 34
Section 4.3. Corporate Existence........................................................................ 34
Section 4.4. Payment of Taxes and Other Claims.......................................................... 34
i
Section 4.5. Compliance Certificate; Notice of Default.................................................. 35
Section 4.6. Reports.................................................................................... 35
Section 4.7. Rule 144A Information Requirement.......................................................... 36
Section 4.8. Further Instruments and Acts............................................................... 36
ARTICLE V. SUCCESSOR CORPORATION............................................................................ 37
Section 5.1. Limitation on Merger, Sale or Consolidation................................................ 37
Section 5.2. Successor Corporation Substituted.......................................................... 37
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES.................................................................. 38
Section 6.1. Events of Default.......................................................................... 38
Section 6.2. Acceleration of Maturity Rescission and Annulment.......................................... 41
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee............................ 42
Section 6.4. Trustee May File Proofs of Claim........................................................... 43
Section 6.5. Trustee May Enforce Claims Without Possession of Securities................................ 44
Section 6.6. Priorities................................................................................. 44
Section 6.7. Limitation on Suits........................................................................ 45
Section 6.8. Unconditional Right of Holders to Receive Principal, Premium, and Interest................. 46
Section 6.9. Rights and Remedies Cumulative............................................................. 46
Section 6.10. Delay or Omission Not Waiver............................................................... 46
Section 6.11. Control by Holders......................................................................... 47
Section 6.12. Waiver of Default.......................................................................... 47
Section 6.13. Undertaking for Costs...................................................................... 48
Section 6.14. Restoration of Rights and Remedies......................................................... 48
ARTICLE VII. TRUSTEE......................................................................................... 48
Section 7.1. Duties of Trustee.......................................................................... 49
Section 7.2. Rights of Trustee.......................................................................... 50
Section 7.3. Individual Rights of Trustee............................................................... 51
Section 7.4. Trustee's Disclaimer....................................................................... 52
Section 7.5. Notice of Default.......................................................................... 52
Section 7.6. Reports by Trustee to Holders.............................................................. 52
Section 7.7. Compensation and Indemnity................................................................. 53
Section 7.8. Replacement of Trustee..................................................................... 54
Section 7.9. Successor Trustee by Merger, Etc........................................................... 56
Section 7.10. Eligibility; Disqualification.............................................................. 56
ii
Section 7.11. Preferential Collection of Claims Against Company........................................... 56
Section 7.12. Other Capacities............................................................................ 56
ARTICLE VIII. SATISFACTION AND DISCHARGE..................................................................... 56
Section 8.1. Satisfaction and Discharge of Indenture..................................................... 56
Section 8.2. Repayment to the Company.................................................................... 57
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................................ 57
Section 9.1. Supplemental Indentures Without Consent of Holders.......................................... 57
Section 9.2. Amendments, Supplemental Indentures and Waivers with
Consent of Holders.......................................................................... 58
Section 9.3. Compliance with TIA......................................................................... 60
Section 9.4. Revocation and Effect of Consents........................................................... 60
Section 9.5. Notation on or Exchange of Securities....................................................... 61
Section 9.6. Trustee to Sign Amendments, Etc............................................................. 61
ARTICLE X. MEETINGS OF HOLDERS............................................................................ 61
Section 10.1. Purposes for Which Meetings May Be Called................................................... 61
Section 10.2. Manner of Calling Meetings.................................................................. 62
Section 10.3. Calling of Meetings by the Company or Holders............................................... 62
Section 10.4. Who May Attend and Vote at Meetings......................................................... 63
Section 10.5. Regulations May Be Made by Company; Conduct of the
Meeting: Voting Rights: Adjournment......................................................... 63
Section 10.6. Voting at the Meeting and Record to Be Kept................................................. 64
Section 10.7. Exercise of Rights of Trustee or Holders May Not Be
Hindered or Delayed by Call of Meeting...................................................... 64
ARTICLE XI. RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL........................................... 65
Section 11.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control........................................................................... 65
Section 11.2. Rescission of Change of Control Determination............................................... 68
ARTICLE XII. SUBORDINATION.................................................................................. 68
Section 12.1. Securities Subordinated to Senior Indebtedness.............................................. 68
Section 12.2. No Payment on Securities in Certain Circumstances........................................... 69
Section 12.3. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution Liquidation or Reorganization................................... 71
iii
Section 12.4. Holders to Be Subrogated to Rights of Holders of Senior Indebtedness........................ 72
Section 12.5. Obligations of the Company Unconditional.................................................... 72
Section 12.6. Trustee and Other Agents Entitled to Assume Payments
Not Prohibited in Absence of Notice......................................................... 73
Section 12.7. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness............................................ 74
Section 12.8. Holders Authorize Trustee to Effectuate Subordination of
Securities.................................................................................. 74
Section 12.9. Right of Trustee to Hold Senior Indebtedness................................................ 75
Section 12.10. Article XII Not to Prevent Events of Default................................................ 75
Section 12.11. No Duty of Trustee and Other Agents to Holders of Senior
Indebtedness................................................................................ 75
ARTICLE XIII. CONVERSION OF SECURITIES....................................................................... 76
Section 13.1. Conversion Privilege........................................................................ 76
Section 13.2. Exercise of Conversion Privilege............................................................ 76
Section 13.3. Fractional Interests........................................................................ 78
Section 13.4. Conversion Price............................................................................ 78
Section 13.5. Adjustment of Conversion Price.............................................................. 78
Section 13.6. Continuation of Conversion Privilege in Case of Reclassifi-
cation, Change, Merger, Consolidation or Sale of Assets..................................... 85
Section 13.7. Notice of Certain Events.................................................................... 86
Section 13.8. Taxes on Conversion......................................................................... 87
Section 13.9. Company to Provide Stock.................................................................... 88
Section 13.10. Disclaimer of Responsibility for Certain Matters............................................ 88
Section 13.11. Return of Funds Deposited for Redemption of Converted
Securities.................................................................................. 89
ARTICLE XIV. MISCELLANEOUS.................................................................................. 89
Section 14.1. TIA Controls................................................................................ 89
Section 14.2. Notices..................................................................................... 89
Section 14.3. Communications by Holders with Other Holders................................................ 91
Section 14.4. Certificate and Opinion as to Conditions Precedent.......................................... 91
Section 14.5. Statements Required in Certificate or Opinion............................................... 91
Section 14.6. Rules by Trustee, Paying Agent, Registrar................................................... 92
Section 14.7. Legal Holidays.............................................................................. 92
Section 14.8. Governing Law............................................................................... 93
Section 14.9. No Adverse Interpretation of Other Agreements............................................... 93
iv
Section 14.10. No Recourse Against Others.................................................................. 93
Section 14.11. Successors.................................................................................. 94
Section 14.12. Duplicate Originals......................................................................... 94
Section 14.13. Severability................................................................................ 94
Section 14.14. Table of Contents, Headings, Etc............................................................ 94
Section 14.15. Qualification of Indenture.................................................................. 94
Section 14.16. Benefits of Indenture....................................................................... 95
v
EXHIBIT A: Form of Security........................................................................... A-1
EXHIBIT B: Certificate to be Delivered Upon Exchange or
Registration of Transfer of Notes.......................................................... B-1
EXHIBIT C: Form of Conversion Notice.................................................................. C-1
vi
INDENTURE, dated as of November 18, 1998, between Total Renal Care
Holdings, Inc., a Delaware corporation (the "Company"), and United States Trust
Company of New York, as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Company's 7%
Convertible Subordinated Notes due 2009:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
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"Acceleration Notice" shall have the meaning specified in Section
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6.2.
"Affiliate" means any person directly or indirectly controlling or
---------
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the terms "control," "controlling" and "controlled"
mean the power to direct the management and policies of a person, directly or
through one or more intermediaries, whether through the ownership of voting
securities, by contract, or otherwise.
"Agent" means the Trustee and any Registrar, Paying Agent, co-
-----
Registrar, authenticating agent or Securities Custodian.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
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federal, state or foreign law for the relief of debtors.
"Beneficial Owner" for purposes of the definition of Change of
----------------
Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the Ex-
change Act, whether or not applicable.
"Blockage Notice" shall have the meaning specified in Section
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12.2(b).
"Board of Directors" means, with respect to any person, the Board
------------------
of Directors of such person or any committee of the Board of Directors of such
person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"Board Resolution" means, with respect to any person, a duly
----------------
adopted resolution of the Board of Directors of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday that is not a day on which banking institutions in New York, New York or
Los Angeles, California are authorized or obligated by law or executive order to
close.
"Capitalized Lease Obligation" means, as to any Person, the
----------------------------
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP.
"Capital Stock" means, with respect to any Person, any and all
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shares, interests, rights to purchase (other than convertible or exchangeable
indebtedness), warrants, options, participation or other equivalents of or
interests (however desig nated) in stock issued by that Person.
"Cash" means such coin or currency of the United States of America
----
as at the time of payment shall be legal tender for the payment of public and
private debts.
"Change of Control" means (i) the acquisition by any Person
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(including any syndicate or group deemed to be a "person" under Section
13(d)(3) of the Exchange Act) (excluding the Company or any wholly owned
Subsidiary thereof or any employee benefit plan of the Company or any such
Subsidiary) of beneficial ownership, directly or indirectly, through a purchase,
merger, or other acquisition transaction or series of transactions of shares of
capital stock of the Company entitling such Person to exercise more than 50% of
the total voting power of all shares of capital stock of the Company entitling
the holders thereof to vote generally in elections of directors; or (ii) any
consolidation of the Company with, or merger of
2
the Company into, any other Person, any merger of another Person into the Com-
pany, or any sale or transfer of all or substantially all of the assets of the
Company to another Person (other than a merger or sale of assets that (x) does
not result in a material reclassification, conversion, exchange, or cancellation
of outstanding shares of capital stock, (y) is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of common stock, or (z) does not have the result that the shareholders of the
Company immediately before such transaction own, directly or indirectly,
immediately following such transaction, less than 50% of the combined total
voting power of all shares of Capital Stock of the Person resulting from such
transaction entitling the holders thereof to vote generally in elections of
directors); provided, however, that a Change of Control shall not be deemed to
have occurred either (i) if at least 90% of the consideration (excluding cash
payments for fractional shares) to be received by the holders of the Common
Stock in the transaction or transactions constituting the Change of Control
consists of shares of common stock or other equity securities traded on a
national securities exchange or quoted on the Nasdaq National Market, and, as a
result of such transaction or transactions, the Notes become convertible into
such common stock or other equity securities or (ii) unless, in the case of
clause (ii) of this definition, a "change of control" (as defined in the Credit
Facilities) shall also have occurred under both of the Credit Facilities.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Common Stock" means the Company's common stock, $0.001 par value
------------
per share, or as such stock may be reconstituted from time to time.
"Company" means the party named as such in this Indenture until a
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successor replaces it pursuant to the Indenture, and thereafter means such
successor.
"Conversion Price" shall have the meaning specified in Section
----------------
13.4.
"Conversion Shares" shall have the meaning specified in Section
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13.5(1).
"Credit Facilities" means (i) the Amended and Restated Revolving
-----------------
Credit Agreement, dated as of April 30, 1998, by and among the Company, the
lenders party thereto, DLJ Capital Funding, Inc., as Syndication Agent, First
Union National Bank, as Documentation Agent, and The Bank of New York, as
Administrative Agent, as amended prior to or on the Issue Date and (2) the
Amended and
3
Restated Term Loan Agreement, dated as of April 30, 1998, by and among the
Company, the lenders party thereto, DLJ Capital Funding, Inc., as Syndication
Agent, and The Bank of New York, as Administrative Agent, as amended prior to or
on the Issue Date, in each case including any notes, guaranties, security or
pledge agreements, letters of credit and other documents or instruments executed
pursuant thereto and any appendices, exhibits or schedules to any of the
foregoing, as the same may be in effect from time to time, and in each case, as
such agreements, notes, guaranties, security or pledge agreements, letters of
credit and other documents or instruments may be amended, modified,
supplemented, renewed, refunded, replaced, refinanced, extended or restated from
time to time (whether with the original agents and lenders or other agents and
lenders or otherwise, and whether provided under the original credit or loan
agreements or other credit or loan agreements or otherwise), including any (i)
extension of the maturity of any Indebtedness or other obligation incurred
thereunder or contemplated thereby, (ii) addition or deletion of borrowers or
guarantors thereunder, so long as the borrowers include one or more of the
Company and its Subsidiaries and their respective successors and assigns, (iii)
increase in the amount of Indebtedness or other obligations incurred thereunder
or available to be borrowed thereunder or (iv) other alteration of the terms and
conditions thereof.
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
sequestrator or similar official under any Bankruptcy Law.
"Date of Conversion" shall have the meaning specified in Section
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13.2.
"Default" means any event or condition that is, or after notice or
-------
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section
------------------
2.12.
"Definitive Securities" means Securities that are in the form of
---------------------
Security attached hereto as Exhibit A that do not include the information called
for by footnotes 1 and 3 thereof.
"Depositary" means, with respect to the Securities issuable or
----------
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
4
"Designated Senior Indebtedness" means (i) any Indebtedness
------------------------------
outstanding under any of the Credit Facilities and (ii) any other Senior
Indebtedness, the principal amount of which is, or under which the lenders party
thereto are committed to lend or advance, $10 million or more; provided that
such other Senior Indebtedness has been designated by the Company in the
instrument or agreement creating or evidencing the same as "Designated Senior
Indebtedness."
"Distribution Date" shall have the meaning specified in Section
-----------------
13.5(1).
"DTC" shall have the meaning specified in Section 2.3.
---
"Event of Default" shall have the meaning specified in Section
----------------
6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations promulgated by the SEC thereunder.
"Expiration Time" shall have the meaning specified in Section
---------------
13.5(f).
"GAAP" means United States generally accepted accounting
----
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession which are in effect in the United States;
provided, however, that for purposes of determining compliance with covenants in
- -------- -------
the Indenture, "GAAP" means such generally accepted accounting principles which
are in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
---------------
referred to in footnote 1 and the additional schedule referred to in footnote 4
to the form of Security attached hereto as Exhibit A.
"Holder" or "Securityholder" means the person in whose name a
---------------------------
Security is registered on the Registrar's books.
"Indebtedness" of any Person means, without duplication, (a) all
------------
liabilities and obligations, contingent or otherwise, of any such Person, (i) in
respect of borrowed money (whether or not the lender has recourse to all or any
portion of
5
the assets of such Person), (ii) evidenced by credit or loan agreements, bonds,
notes, debentures or similar instruments (including, without limitation, notes
or similar instruments given in connection with the acquisition of any business,
properties or assets of any kind), (iii) evidenced by bankers' acceptances or
similar instruments issued or accepted by banks, (iv) for the payment of money
relating to a Capitalized Lease Obligation or (v) evidenced by a letter of
credit, bank guarantee or a reimbursement obligation of such Person with
respect to any letter of credit; (b) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (c) all net obligations of such Person under Interest Swap and
Hedging Obligations; (d) all liabilities of others of the kind described in the
preceding clauses (a), (b) or (c) that such Person has guaranteed or that is
otherwise its legal liability, or which is secured by a Lien on property of such
Person (other than carrier's, warehousemen's, mechanic's, repairmen's or other
like non-consensual statutory Liens arising in the ordinary course of business);
and (e) any and all deferrals, renewals, extensions, modifications,
replacements, restatements, refinancings and refundings (whether direct or
indirect) of, or any indebtedness or obligation issued in exchange for, any
liability of the kind described in any of the preceding clauses (a), (b), (c) or
(d), or this clause (e), whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or supplemented from
---------
time to time in accordance with the terms hereof.
"Initial Purchasers" means Donaldson, Lufkin & Jenrette Securities
------------------
Corporation, BNY Capital Markets, Inc., Credit Suisse First Boston Corporation
and Warburg Dillon Read LLC.
"Interest Payment Date" means the stated due date of an
---------------------
installment of interest on the Securities.
"Interest Swap and Hedging Obligation" means the obligations of
------------------------------------
any Person under any interest rate or currency protection agreement, future
agreement, option agreement, swap agreement, cap agreement or other interest
rate or currency hedge agreement, collar agreement or other similar agreement or
arrangement to which such Person is a party or beneficiary.
"Issue Date" means the date of first issuance of the Securities
----------
under this Indenture.
6
"Junior Securities" means Capital Stock in the Company and any
-----------------
Indebtedness of the Company, in each case that (a) is authorized and issued
pursuant to a plan of reorganization of the Company (which authorization states
that it gives effect to the subordination of such Junior Securities to all
Senior Indebtedness), (b) is subordinated to all Senior Indebtedness (and any
debt securities issued in exchange for Senior Indebtedness) to substantially the
same extent as, or to a greater extent than, the Notes are subordinated to
Senior Indebtedness pursuant to the Indenture and (c) contains terms,
provisions, covenants and default provisions not more beneficial to the Holders
of the Notes as compared to the holders of Senior Indebtedness on the issue date
of the Notes.
"Last Sale Price" shall have the meaning specified in Section
---------------
13.3.
"Legal Holiday" shall have the meaning specified in Section 14.7.
-------------
"Lien" means any mortgage, lien, pledge, charge, security interest
----
or other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest and
any option or other agreement to give any security interest).
"Liquidated Damages" shall have the meaning specified in the
------------------
Registration Rights Agreement.
"non-electing share" shall have the meaning specified in Section
------------------
13.6.
"Non-Payment Default" shall have the meaning specified in Section
-------------------
12.2(b).
"Non-Recourse Debt" means Indebtedness of a Person to the extent
-----------------
that under the terms thereof and pursuant to applicable law, no personal
recourse could be had against such Person for the payment of the principal of or
interest or premium or any other amounts with respect to such Indebtedness or
for any claim based on such Indebtedness and that enforcement of obligations on
such Indebtedness is limited solely to recourse against interests in specified
assets.
"Notice of Default" shall have the meaning specified in Section
-----------------
6.1(4), (5) or (6).
7
"Offer" shall have the meaning specified in Section 13.5(f).
-----
"Offering Memorandum" means the final Offering Memorandum, dated
-------------------
November 13, 1998, in connection with which the Securities were offered and sold
by the Company.
"Officer" means, with respect to the Company, the Chief Executive
-------
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary or any Assistant Secretary of the
Company.
"Officers' Certificate" means, with respect to the Company, a
---------------------
certificate signed by two Officers of the Company (one of whom shall be the
principle executive, financial or accounting officer of the Company) and
otherwise complying with the requirements of Section 2.2, if applicable, and
Sections 14.4 and 14.5.
"Opinion of Counsel" means a written opinion from legal counsel
------------------
(who can be counsel to the Company or an employee of the Company) who is
reasonably acceptable to the Trustee and which complies with the requirements of
Sections 14.4 and 14.5.
"Paying Agent" shall have the meaning specified in Section 2.3.
------------
"Payment Blockage Period" shall have the meaning specified in
-----------------------
Section 12.2(b).
"Payment Default" shall have the meaning specified in Section
---------------
12.2(a).
"Person" or "person" means any corporation, individual, limited
------------------
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"principal" of any Indebtedness means the principal of such
---------
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or assets
--------
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
8
"Purchase Agreement" means that certain Purchase Agreement, dated
------------------
November 12, 1998, by and among the Company and the Initial Purchasers.
"Purchased Shares" shall have the meaning specified in Section
----------------
13.5(f).
"Record Date" means a record date specified in the Securities
-----------
whether or not such record date is a Business Day.
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the redemption price for such redemption pursuant to Paragraph 5
in the form of Security attached hereto as Exhibit A, which shall include,
without duplication, in each case, accrued and unpaid interest and Liquidated
Damages, if any, to but excluding, the Redemption Date.
"Registrar" shall have the meaning specified in Section 2.3.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement, dated the date hereof, by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Repurchase Date" shall have the meaning specified in Section
---------------
11.1(a).
"Repurchase Offer" shall have the meaning specified in Section
----------------
11.1(b).
"Repurchase Offer Period" shall have the meaning specified in
-----------------------
Section 1l.l (b).
"Repurchase Price" shall have the meaning specified in Section
----------------
l1.l (a).
9
"Repurchase Put Date" shall have the meaning specified in Section
-------------------
11.1(b).
"Restricted Security" means a Security, unless or until it has
-------------------
been (i) disposed of in a transaction effectively registered under the
Securities Act or (ii) distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
---
"Securities" means, collectively, the 7% Convertible Subordinated
----------
Notes due 2009, as supplemented from time to time in accordance with the terms
hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
--------------
the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with
--------------------
respect to the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all obligations of the Company to pay
-------------------
the principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition interest is allowed as a claim in any such
proceeding) and rent payable on or in connection with, and all letters of
credit, reimbursement obligations and fees, costs, expenses and other amounts
and liabilities accrued or due on or in connection with, and Interest Swap and
Hedging Obligations issued by parties to and secured with, the Credit Facilities
and any other Indebtedness of the Company, whether outstanding on the date of
the Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, unless the instrument creating or evidencing such
Indebtedness expressly provides that such Indebtedness is not senior or superior
in right of payment to the Securities or is pari passu with, or subordinated to,
----------
the Securities; provided that in no event shall Senior Indebtedness include (a)
--------
Indebtedness of the Company owed to any Subsidiary of the Company, (b)
Indebtedness of the Company representing any trade account payable incurred in
the ordinary course of business, (c) any liability for taxes owed or owing by
the Company or any Subsidiary of the Company or (d) the Securities.
"Shelf Registration Statement" shall have the meaning specified in
----------------------------
the
10
Registration Rights Agreement.
"Significant Subsidiary" means as of any date of determination, (i)
----------------------
any Subsidiary of the Company that has aggregate total assets in an amount in
excess of 10% of the consolidated total assets of the Company and its
Subsidiaries at such date of determination and (ii) any Subsidiary of the
Company for which the net income of such Subsidiary and its Subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principals, during the four fiscal quarters most recently ended
preceding the date of determination, exceeded 10% of the net income of the
Company and its Subsidiaries during such period.
"Special Record Date" for payment of any Defaulted Interest means a
-------------------
date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity," when used with respect to any Note, means May 15,
---------------
2009.
"Subordinated Obligations" shall have the meaning set forth in Article
------------------------
XII.
"Subsidiary" with respect to any Person, means (i) a corporation a
----------
majority of whose Capital Stock with voting power normally entitled to vote in
the election of directors is at the time, directly or indirectly, owned by such
Person, by such Person and one or more Subsidiaries of such Person or by one or
more Subsidiaries of such Person, (ii) a partnership in which such Person or a
Subsidiary of such Person is, at the time, a general partner and owns alone or
together with one or more Subsidiaries of such Person a majority of the
partnership interests, or (iii) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries of such Person, or such Person and
one or more Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
---
77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as provided by Section 9.3 hereof pursuant to which the term "TIA" will
mean such Trust Indenture Act as amended through and including the date
specified by such Section 9.3 for purposes thereof.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
-----------
11
and Friday, other than any day on which securities are not traded on the New
York Stock Exchange (or, if the Common Stock is not listed thereon, on the
principal national securities exchange or any national automated quotation
system on which the Common Stock is listed or admitted to trading).
"Transfer Restricted Securities" means Securities that (i) bear or are
------------------------------
required to bear the legend set forth in Section 2.6 hereof and (ii) contain the
paragraph referred to in footnote 2 to the form of security attached hereto as
Exhibit A and the paragraph referred to in footnotes 4 and 5 to the certificate
attached hereto as Exhibit B.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust division
-------------
(or any successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"U.S. Government Obligations" means direct noncallable obligations of,
---------------------------
or noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
Section 1.2. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
----------
"Indenture securities" means the Securities.
--------------------
"Indenture securityholder" means a Holder or a Securityholder.
------------------------
"Indenture to be qualified" means this Indenture.
-------------------------
12
"Indenture trustee" or "institutional trustee" means the Trustee.
-----------------
"Obligor" on the indenture securities means the Company and any other
-------
obliger on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(7) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated
otherwise.
ARTICLE II.
13
THE SECURITIES
Section 2.1. Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve, with the consent of the Trustee, the form of the Securities and any
notation, legend or endorsement on them. Any such notations, legends or
endorsements not contained in the form of Security attached as Exhibit A hereto
shall be delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. If any term or provision of a Security limits, qualifies, or conflicts
with the terms of this Indenture, the terms of this Indenture shall control.
Section 2.2. Execution and Authentication.
----------------------------
Two Officers shall sign the Security for the Company by manual or
facsimile signature. The Company's seal may be, but is not required to be,
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that or any office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless and
the Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. Such
signature shall be conclusive evidence, and the only evidence, that the Security
has been authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate the Securities for original issue in
the aggregate principal amount of up to $345,000,000 upon a written order of the
14
Company. The order shall specify (i) the amount of Securities to be
authenticated and (ii) the date on which the Securities are to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed $345,000,000 except as provided in Section 2.7; provided, that Securities
--------
in excess of $300,000,000 shall not be issued other than pursuant to the over-
allotment option granted by the Company to the Initial Purchasers thereof. Upon
the written order of the Company in the form of an Officers' Certificate, the
Trustee shall authenticate Securities in substitution of Securities originally
issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Anauthenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries, and has the same protections under the
Indenture.
Securities shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
Section 2.3. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in New York, New York,
where Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities may be presented for
payment ("Paying Agent") and where notices and demands to or upon the Company in
respect of the Securities may be served. The Company may act as Registrar or
Paying Agent, except that, for the purposes of Articles III, VIII and XI and as
otherwise specified in the Indenture, neither the Company nor any Affiliate of
the Company shall act as Paying Agent. The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. The Company hereby initially
appoints the Trustee as Registrar and Paying Agent, and the Trustee hereby
initially agrees so to act. The Company may change any Paying Agent or Registrar
without notice to any Holder.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
15
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
Section 2.4. Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium, if any, interest on or Liquidated Damages with respect
to, the Securities (whether such assets have been distributed to it by the
Company or any other obligor on the Securities), and shall notify the Trustee in
writing of any Default in making any such payment. If either of the Company or
a Subsidiary of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund for the benefit of the Holders or the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any Payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such assets.
Section 2.5. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before the fourth Business Day preceding each Interest Payment
Date and at such other times as the Trustee may request in writing a list in
such form and as of such
16
date as the Trustee reasonably may require of the names and addresses of
Holders.
Section 2.6. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Definitive Securities. When Definitive
----------------------------------------------
Securities are presented to the Registrar or a co-Registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations;
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
- -------- -------
exchange:
(i) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar
or co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are Definitive
Securities, shall be accompanied by the following additional information
and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the Security); or
(B) if such Transfer Restricted Security is being transferred to
a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) that is aware that any sale of securities to it will
be made in reliance on Rule 144A under the Securities Act and that is
acquiring such Transfer Restricted Security for its own account or for
the account of another such "qualified institutional buyer," a
certification from such Holder to that effect (in substantially the
form set forth on the reverse of the Security);
17
(C) if such Transfer Restricted Security is being transferred to
an institutional investor that is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, a
certification to that effect (in substantially the form set forth on
the reverse of the Security) accompanied by a certificate in the form
of Exhibit B to the Indenture to the Trustee and if either the Trustee
or the Company so requests, an Opinion of Counsel satisfactory to the
requesting party to the effect that such transfer is in compliance
with the Securities Act; or
(D) if such Transfer Restricted Security is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act and with all applicable securities laws of the
states of the United States, a certification to that effect (in
substantially the form set forth on the reverse of the Security) and
if either the Trustee or the Company so requests, an Opinion of
Counsel satisfactory to the requesting party to the effect that such
transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
------------------------------------------------------------------
Interest in a Global Security. A Definitive Security may not be exchanged for a
- -----------------------------
beneficial interest in a Global Security, except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer in
form reasonably satisfactory to the Company and the Registrar or Co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing,
together with:
(i) if such Definitive Security is a Transfer Restricted Security,
certification, substantially in the form set forth on the Security, that
such Definitive Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer Restricted
Security, written instructions directing the Trustee to make, or to direct
the Securities Custodian to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the applicable Global Security;
18
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the appropriate Global
Security to be increased accordingly. If no Global Securities are then
outstanding, the Company shall issue and the Trustee, upon receipt of the
authentication order of the Company in the form of an Officers' Certificate,
shall authenticate an appropriate new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
------------------------------------------
of Global Securities or beneficial interests therein shall be effected through
the Depositary, in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a Definitive
-----------------------------------------------------------------------
Security.
- --------
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Definitive Security.
Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written instruction or such
other form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest in a
Transfer Restricted Security only, the following additional information and
documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification from such person to that effect (in substantially the
form set forth on the reverse of the Security);
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) that is aware that any sale of Securities to it will
be made in reliance on Rule 144A under the Securities Act and that is
acquiring such beneficial interest in the Transfer Restricted Security
19
for its own account or the account of another "qualified institutional
buyer," a certification to that effect from the transferor (in
substantially the form set forth on the reverse of the Security);
(C) if such Definitive Security is being transferred to an
institutional investor that is an "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act, a
certification to that effect (in substantially the form set forth on
the reverse of the Security) accompanied by a certificate in the form
of Exhibit B to the Indenture to the Trustee and if either the Trustee
or the Company so requests, an Opinion of Counsel satisfactory to the
requesting party to the effect that such transfer is in compliance
with the Securities Act; or
(D) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act and in accordance with all applicable securities laws
of the states of the United States, a certification to that effect
from the transferor (in substantially the form set forth on the
reverse of the Security) and if either the Trustee or the Company so
requests, an Opinion of Counsel satisfactory to the requesting party
to the effect that such transfer is in compliance with the Securities
Act;
then the Trustee or the Securities Custodian, at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal
amount of the applicable Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication order
in the form of an Officers' Certificate, the Trustee will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
make such Definitive Securities available for delivery to the persons in
whose names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities. Notwith-
----------------------------------------------------------
20
standing any other provisions of this Indenture (other than the provisions set
forth in subsection (f) of this Section 2.6), a Global Security may not be
transferred as a whole except (i) by the Depositary to a nominee of the
Depositary, (ii) by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or (iii) by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(6) Authentication of Definitive Securities in Absence of Depositary. If
----------------------------------------------------------------
at any time:
(1) the Depositary for the Securities notifies the Company and the
Company notifies the Trustee in writing that the Depositary is no longer
willing or able to continue as Depositary for the Global Securities and a
successor Depositary for the Global Securities is not appointed by the
Company within 90 days after delivery of such notice; or
(2) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Securities under
this Indenture;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will, or its authenticating agent will, authenticate and deliver Definitive
Securities, in an aggregate principal amount equal to the principal amount of
the Global Securities, in exchange for such Global Securities.
(7) Legends.
-------
(1) Except as permitted by the following paragraph (ii), each Security
certificate evidencing the Global Securities and the Definitive Securities
(and all Securities issued in exchange therefor or substitution thereof)
shall bear a legend in substantially the following form:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT AS SET FORTH IN THE NEXT SENTENCE HEREOF. BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT EITHER
(A) IT IS A
21
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (C) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (A FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE), (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING."
(2) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act:
(i) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security
that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Security (1)
in the case
22
of a sale or transfer pursuant to Rule 144 under the Securities Act,
after delivery of a customary Opinion of Counsel satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act or (2) in the case of a sale or transfer pursuant to an
effective registration statement under the Securities Act; and
(2) any such Transfer Restricted Security represented by a
Global Security shall not be subject to the provisions set forth in
(i) above (such sales or transfers being subject only to the
provisions of Section 2.6(c) hereof); provided, however, that with
respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Security for a Definitive
Security that does not bear a legend, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in writing to
the Registrar that such request is being made pursuant to Rule 144
(such certification to be substantially in the form set forth on the
reverse of the Security).).
(8) Cancellation and/or Adjustment of Global Security. At such time as all
------------------------------------------------
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to or retained and canceled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the Trustee
or the Securities Custodian, at the written direction of the Trustee, to reflect
such reduction.
(9) Obligations with respect to Transfers and Exchanges of Definitive
-----------------------------------------------------------------
Securities.
- ----------
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee or any authenticating agent of
the Trustee, upon receipt of the authentication order of the Company
in the form of an Officers' Certificate, shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-Registrar's
written request.
(2) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar govern-
23
mental charge payable in connection therewith (other than any
such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.2
(fourth paragraph), 2.10, 3.7, 9.5, or 1 1.1 (final paragraph)).
(3) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of (a) any Definitive
Security selected for redemption in whole or in part pursuant to
Article III, except the unredeemed portion of any Definitive
Security being redeemed in part, or (b) any Security for a period
beginning 15 Business Days before the mailing of a notice of an
offer to repurchase pursuant to Article XI hereof or the mailing
of a notice of redemption of Securities pursuant to Article III
hereof and ending at the close of business on the day of such
mailing.
(10) General.
-------
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.7. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee and the Company, to the effect that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee, upon receipt of the authentication order of the Company in the form of
an Officers' Certificate, shall authenticate a replacement Security if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company and the Trustee may charge such Holder for their expenses
in replacing a Security.
24
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion,
but subject to any conversion rights, may, instead of issuing a new Security,
pay such Security, upon satisfaction of the conditions set forth in the
preceding paragraph.
Every new Security issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.8 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced or paid pursuant to Section 2.7 (other
than a mutilated Security surrendered for replacement), the replaced or paid
Security ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced or paid Security is held by a bona fide purchaser. A
mutilated Security ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.7.
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 or its Affiliates) in trust or set aside and segregated
in trust by the Company or one of its Subsidiaries (if the Company or one of its
Subsidiaries shall act as the Paying Agent) for the Holders of such Notes shall
be deemed to be no longer outstanding on and after the date for such payment or
redemption and shall
25
cease to accrue interest.
Section 2.9. Treasury Securities.
-------------------
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned by the Company or an Affiliate of the
Company shall be disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
amendment, supplement, waiver or consent, only Securities that a Trust Officer
of the Trustee actually knows are so owned shall be disregarded. The Company
shall notify the Trustee, in writing, when the Company or an Affiliate of the
Company repurchases or otherwise acquires Securities and of the principal amount
of such Securities so repurchased or otherwise acquired. Notwithstanding the
foregoing, Securities that are to be acquired by the Company or any Affiliate of
the Company pursuant to an exchange offer, tender offer or other agreement shall
not be deemed to be owned by the Company or such Affiliate until legal title to
such Securities has passed to such entity.
Section 2.10. Temporary Securities.
--------------------
Until Definitive Securities are ready for delivery, the Company
may prepare and the Trustee (upon written request from the Company) shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
reasonably and in good faith considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as permanent Securities authenticated and
delivered hereunder.
Section 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
cancel all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.7, the Company may not issue new Securities
to replace Securities that have been paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in
26
lieu of or in exchange for any Securities canceled as provided in this Section
2.11, except as expressly permitted in the form of Securities and as permitted
by this Indenture. All cancelled Securities shall be destroyed (subject to the
record retention requirements of the Exchange Act) and certification of their
destruction delivered to the Company, unless the Company shall direct in writing
that cancelled Securities be returned to it.
Section 2.12. Defaulted Interest.
------------------
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more predecessor Securities) is
registered at the close of business on the Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (collectively,
herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and such Defaulted Interest shall
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest
which shall be not more than 15 Business Days and not less than
10 Business Days prior to the date of the proposed payment and
not less than 10 Business Days after the receipt by the Trustee
of the notice of the proposed payment ("Special Record Date").
The Trustee shall promptly notify the Company in writing 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 such
Holder's address as it appears in the registry books of the
Registrar not less than 10 Business Days prior to such Special
Record Date. Notice of
27
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names
the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). Prior to 12:00 noon
New York time on the date on which the Defaulted Interest is to
be paid, the Company shall deposit with the Trustee an amount of
Cash equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest.
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if,
after written notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Notwithstanding the foregoing, any interest which is paid prior
to the expiration of the grace period provided in Section 6.1 shall be paid to
the Holders of the Securities as of the regular Record Date for such Interest
Payment Date for which interest has not been paid.
Section 2.13. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
Section 2.14. Deposit of Moneys.
-----------------
28
Prior to noon New York time on each Interest Payment Date,
Redemption Date and Repurchase Date, and on the Stated Maturity Date, the
Company shall have deposited with the Paying Agent such amounts in immediately
available funds sufficient to make Cash payments, if any, due on such Interest
Payment Date, Redemption Date, Repurchase Date or Stated Maturity Date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date, Redemption Date, Repurchase Date
or Stated Maturity Date.
ARTICLE III.
REDEMPTION
Section 3.1. Right of Redemption.
-------------------
Redemption of Securities, as permitted by any provision of this
Indenture, shall be made in accordance with Paragraph 5 of the Securities and
this Article III. The Company will not have the right to redeem any Securities
prior to November 15, 2001. On or after November 15, 2001, the Company will
have the right to redeem all or any part of the Securities at the Redemption
Prices specified in Paragraph 5 therein under the caption "Redemption," in each
case including accrued and unpaid interest and Liquidated Damages, if any, to,
but excluding, the Redemption Date.
Section 3.2. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Paragraph
5 of the Securities, it shall notify the Trustee in writing of the Redemption
Date, the principal amount of Securities to be redeemed, the Redemption Price
and whether it wants the Trustee, on behalf of the Company, to give notice of
redemption to the Holders.
If the Company elects to reduce the principal amount of
Securities to be redeemed pursuant to Paragraph 5 of the Securities by crediting
against any such redemption Securities it has not previously delivered to the
Trustee for cancellation, it shall so notify the Trustee in writing of the
amount of the reduction and deliver such Securities with such notice.
The Company shall give each notice to the Trustee provided for in
29
this Section 3.2 at least 45 days but not more than 75 days before the
Redemption Date (unless a shorter notice period shall be satisfactory to the
Trustee) together with an Officer's Certificate stating that such redemption
will comply with the conditions contained herein. Any such notice to the Trustee
may be canceled at any time prior to notice of such redemption being mailed to
any Holder and shall thereby be void and of no effect.
Section 3.3. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed on a
pro rata basis, by lot or by such other method as the Trustee shall determine to
- --- ----
be fair and appropriate and in such manner as complies with any applicable
depositary, legal and stock exchange or automated quotation system requirements.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.4. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to the Trustee and each Holder whose Securities are to be redeemed at
such Holder's address as it appears on the security register maintained by the
Registrar. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice of
redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date, and that the Securities called for
redemption may not be converted after the Business Day
immediately prior to the Redemption Date;
(2) the Redemption Price, including the amount of accrued
30
and unpaid interest and Liquidated Damages, if any, to be paid upon
such redemption;
(3) the name, address and telephone number of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect
the Redemption Price plus accrued interest;
(5) that, unless (a) the Company defaults in its obligation to
deposit Cash with the Paying Agent in accordance with Section 3.6
hereof or (b) such redemption payment is prohibited pursuant to
Article XII hereof or otherwise, interest on, and Liquidated Damages
with respect to, Securities called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption
Price, including accrued and unpaid interest and Liquidated Damages,
if any, to, but excluding the Redemption Date, upon surrender to the
Paying Agent of the Securities called for redemption and to be re
deemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of
such Security to be redeemed and that, on or after the Redemption
Date, upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof
will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Security
ties to be redeemed and the aggregate principal amount of Securities
to be outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4
and pursuant to the redemption provisions of Paragraph 5 of the
31
Securities.
The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice.
Section 3.5. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding, the Redemption Date. Upon
surrender to the Trustee or Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price, including accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding, the Redemption Date; provided
--------
that if the Redemption Date is after a regular Record Date and on or prior to
the corresponding Interest Payment Date, the accrued interest and Liquidated
Damages, if any, shall be payable to the Holder of the redeemed Securities
registered on the relevant Record Date; and provided, further, that if a
-------- -------
Redemption Date is a Legal Holiday, payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day. Notices mailed as provided in this Article
III shall be conclusively presumed to have been given whether or not a given
Holder receives the Notice.
Section 3.6. Deposit of Redemption Price.
---------------------------
Prior to 12:00 noon New York time on the Redemption Date, the
Company shall deposit with the Paying Agent (other than the Company or an
Affiliate of the Company) Cash sufficient to pay the Redemption Price of,
including accrued and unpaid interest on, and Liquidated Damages, if any, with
respect to, all Securities to be redeemed on such Redemption Date (other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation). The Paying Agent
shall promptly return to the Company any Cash so deposited which is not required
for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the
other provisions of this Article III and payment of the Securities called for
redemption is not prohibited under Article XII or otherwise, interest on the
Securities to be re deemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
Notwithstanding anything herein to
32
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Security.
Section 3.7. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Company shall execute and the Trustee, upon receipt of a written order of the
Company in the form of an Officers' Certificate, shall thereafter authenticate
and make available for delivery to the Holder, without service charge to the
Holder, a new Security or Securities equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Securities.
---------------------
The Company shall pay the principal of, interest on, and
Liquidated Damages with respect to, the Securities on the dates and in the
manner provided in this Indenture and the Securities, as applicable. An
installment of principal of, interest on, or Liquidated Damages with respect to,
the Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 12:00 noon New York time on that date,
Cash deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Securities
compounded semi-annually, to the extent lawful.
Section 4.2. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in New York, New York, an office or
agency where Securities may be presented or surrendered for payment, where
33
Securities may be surrendered for registration of transfer or exchange and for
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company shall 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 presenta presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 14.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an office or agency
in New York, New York, for such purposes. The Company shall give prior 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. The Company hereby initially
designates the corporate trust office of the Trustee in New York, New York, as
the office contemplated by this Section 4.2.
Section 4.3. Corporate Existence.
-------------------
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence in accordance with its organizational documents and the rights
(charter and statutory) and corporate franchises of the Company; provided,
--------
however, that the Company shall not be required to preserve, with respect to
- -------
itself, any right or franchise, if the Company shall, in good faith, reasonably
determine that the preservation thereof is no longer necessary or desirable in
the conduct of the business of such entity and the loss thereof is not adverse
in any material respect to the Holders.
Section 4.4. Payment of Taxes and Other Claims.
---------------------------------
The Company shall, and shall cause each of its Subsidiaries to,
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, all material taxes, assessments and governmental charges
(including withhold withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon the Company or any of its Subsidiaries or any
of their respective properties and assets; provided, however, that neither the
-------- -------
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assess-
34
ment or charge whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
Section 4.5. Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company shall deliver to a Trust Officer of the Trustee
within 120 days after the end of its fiscal year an Officers' Certificate
complying with Section 314(a)(4) of the TIA and stating that a review of its
activities and the activities of its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining, without regard to notice periods or periods of grace, whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture and further stating, as to each such Officer signing such certificate,
whether or not the signer knows of any failure by the Company or any Subsidiary
of the Company to comply with any conditions or covenants in this Indenture and,
if such signor does know of such a failure to comply, the certificate shall
describe such failure with reasonable particularity. The Officers' Certificate
shall also notify the Trustee should the relevant fiscal year end on any date
other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to a Trust Officer of the Trustee, promptly upon becoming
aware of any Default, Event of Default or fact which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, an Officers'
Certificate specifying such Default, Event of Default or fact and what action
the Company is taking or proposes to take with respect thereto. The Trustee
shall not be deemed to have knowledge of any Default, any Event of Default or
any such fact unless one of its Trust Officers receives written notice thereof
from the Company or any of the Holders.
Section 4.6. Reports.
-------
Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
deliver to the Trustee within 15 days after it is or would have been required to
file such with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC if the Company were subject to the requirements of
Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by the Company's certified independent public
accountants as such would be required in such reports to the SEC and, in each
case, together with a management's discussion
35
and analysis of financial condition and results of operations which would be so
required.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.7. Rule 144A Information Requirement.
---------------------------------
If at any time there are Transfer Restricted Securities
outstanding and the Company shall cease to have a class of equity securities
registered under Sections 12(b) or 12(g) of the Exchange Act or shall cease to
be subject to Section 15(d) of the Exchange Act, the Company shall furnish,
within a reasonable period of time, to the Holders or beneficial holders of the
Securities or the underlying Common Stock and prospective purchasers of
Securities or the underlying Common Stock designated by the Holders of
Transfer Restricted Securities, upon their written request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
until such time as the Shelf Registration Statement has become effective under
the Securities Act. The Company shall also furnish such information during the
pendency of any suspension of effectiveness of the Shelf Registration Statement.
Section 4.8. Further Instruments and Acts.
----------------------------
Upon the request of the Trustee, the Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE V.
SUCCESSOR CORPORATION
Section 5.1. Limitation on Merger, Sale or Consolidation.
-------------------------------------------
36
(a) The Company shall not, directly or indirectly, consolidate
with or merge with or into another Person or sell, lease or otherwise dispose of
all or substantially all of its assets (on a consolidated basis), whether in a
single transaction or a series of related transactions, to another Person or
group of affiliated Persons (other than to its wholly owned Subsidiaries),
unless (i) either (a) in the case of a merger or consolidation, the Company is
the surviving entity or (b) the resulting, surviving Person in such merger or
consolidation (if not the Company), or transferee entity (in the case of a sale,
lease or other disposition of assets) is a corporation organized under the laws
of the United States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and the Indenture; (ii) no Default or
Event of Default shall exist or shall occur immediately before or after giving
effect on a pro forma basis to such transaction; and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and, if a supplemental
indenture is required, such supplemental indenture comply with the Indenture and
that all conditions precedent in the Indenture relating to such transactions
have been satisfied.
(b) For purposes of clause (a) of this Section 5.1 and Section
13.6, the sale, lease or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company, unless such
disposition is to the Company.
Section 5.2. Successor Corporation Substituted.
---------------------------------
Upon any permitted consolidation or merger or any permitted sale,
lease or other disposition of all or substantially all of the assets of the
Company in accordance with the foregoing, the successor corporation formed by
such consolida consolidation or into which the Company is merged or to which
such sale, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture with the same effect as if such successor corporation had been
named therein as the Company, and when a succes successor corporation duly
assumes all of the obligations of the Company pursuant hereto and pursuant to
the Securities, the predecessor shall be released from such obligations.
37
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure by the Company to pay any installment of
interest on the Securities as and when the same becomes due and
payable and the continuance of such failure for a period of 30
days, whether or not such payment is prohibited by Article XII;
(2) failure by the Company to pay all or any part of the
principal of, or premium, if any on the Securities when and as
the same become due and payable at maturity, redemption, by
acceleration or otherwise, including, without limitation, failure
to pay all or any part of the Repurchase Price on the Repurchase
Date in accordance with Article XI, whether or not such payment
is prohibited by Article XII;
(3) failure of the Company to perform its covenants and
agreements in accordance with Article XIII and the continuance of
any such failure for 30 days;
(4) failure by the Company to observe or perform any
covenant or agreement contained in the Securities or this
Indenture (other than a default in the performance of any
covenant or agreement which is specifically dealt with elsewhere
in this Section 6.1), and continuance of such failure for a
period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company
and the Trustee by Holders of at least 25% in aggregate principal
amount of the then outstanding Securities, a written notice
specifying the nature of the purported default, and that the
same, if not cured, would constitute an Event of Default under
this Indenture;
38
(5) failure to make any payment at final stated maturity,
including any applicable grace period, in respect of Indebtedness of
the Company (other than Non-Recourse Debt) in an amount in excess of
$10,000,000, and continuance of such failure for 30 days after written
notice is given to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of Securities outstanding specifying the nature of the
purported default, and that the same, if not cured, would constitute
an Event of Default under this Indenture;
(6) default with respect to any Indebtedness of the Company,
which default results in the acceleration of Indebtedness (other than
Non-Recourse Debt) in an amount in excess of $10,000,000 without such
Indebtedness having been discharged or such acceleration having been
rescinded or annulled for 30 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of Securities
outstanding specifying the nature of the purported default, and that
the same, if entered, would constitute an Event of Default under this
Indenture;
(7) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of
its Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any
of its Significant Subsidiaries under any bankruptcy or similar law,
and such decree or order shall have continued undischarged and
unstayed for a period of 45 days; or a decree or order of a court of
competent jurisdiction over the appointment of a receiver, liquidator,
trustee, or assignee in bankruptcy or insolvency of the Company, any
of its Significant Subsidiaries, or of the property of any such
Person, or for the winding up or liquidation of the affairs of any
such Person, shall have been entered, and such decree, judgment, or
order shall have remained in force undischarged and unstayed for a
period of 45 days;
(8) the Company or any of its Significant Subsidiaries shall
institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or
39
shall file a petition or answer or consent seeking reorganization
under any bankruptcy or similar law or similar statute, or shall
consent to the filing of any such petition, or shall consent to
the appointment of a Custodian, receiver, liquidator, trustee, or
assignee in bankruptcy or insolvency of it or any of its assets
or property, or shall make a general assignment for the benefit
of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall, within the meaning
of any Bankruptcy Law, become insolvent, fail generally to pay
its debts as they become due, or take any corporate action in
furtherance of or to facilitate, conditionally or otherwise, any
of the foregoing; or
(9) final unsatisfied judgments not covered by insurance,
aggregating in excess of $10,000,000 at any one time shall have
been rendered against the Company or any of its Significant
Subsidiaries and not have been stayed, bonded or discharged for a
period (during which execution shall not be effectively stayed)
of 60 days after the right to appeal such judgment has expired
(or, in the case of any such final judgment which provides for
payment over time, which shall so remain unstayed, unhanded or
undischarged beyond any applicable payment date provided
therein).
Notwithstanding the 60-day period and notice requirement
contained in Section 6. 1(4) above, with respect to a default under Article XI
the 60-day period referred to in Section 6.1(4) shall be deemed to have begun as
of the date the Change of Control notice is required to be sent in the event
that the Company has not complied with the provisions of Section 11.1 and the
Trustee or Holders of at least 25% in principal amount of the outstanding
Securities thereafter give the Notice of Default referred to in Section 6.1(4)
to the Company and, if applicable, the Trustee; provided, however, that if the
-------- -------
breach or default is a result of a default in the payment when due of the
Repurchase Price on the Repurchase Date, such Event of Default shall be deemed,
for purposes of this Section 6.1, to arise no later than on the final Repurchase
Date.
Section 6.2. Acceleration of Maturity Rescission and Annulment.
-------------------------------------------------
If an Event of Default (other than an Event of Default
specified in Section 6.1(7) or (8) relating to the Company) occurs and is
continuing, then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of at least 25% in aggregate principal
40
amount of then outstanding Securities, by a notice in writing to the Company
(and to the Trustee if given by Holders) (an "Acceleration Notice"), may declare
all unpaid principal, premium, if any, accrued interest and Liquidated Damages,
if any, of the Securities (or the Repurchase Price if the Event of Default
includes failure to pay the Repurchase Price, determined as set forth below),
with respect thereto, to be due and payable immediately without any other
declaration or act on the part of the Trustee or the Holders. If an Event of
Default specified in Section 6.1(7) or (8) relating to the Company occurs, all
principal, premium, if any, accrued interest and Liquidated Damages on or with
respect thereto will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of Trustee or the
Holders.
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 provided in this Article VI, the Holders of no less
than a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) the principal of (and premium, if any, applicable to) any
Securities which would then be due otherwise than by such declaration
of acceleration, and interest thereon at the rate borne by the
Securities,
(B) to the extent that payment of such interest is lawful,
interest upon overdue interest and Liquidated Damages at the rate
borne by the Securities,
(C) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, interest on and Liquidated Damages with
respect to Securities that have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section
6.12, including, if applicable, any Event of Default relating to
41
the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if an Event of Default in payment of
principal, premium, interest or Liquidated Damages specified in clause (1) or
(2) of Section 6.1 occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal, premium (if
any), interest, Liquidated Damages and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any), Liquidated Damages and on any overdue interest, at the rate
borne by the Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs, fees and expenses of collection, including
compensation to, and 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 in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective 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.
42
Section 6.4. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (which term as used in this Section shall include any
predecessor Trustee) (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, interest or Liquidated
Damages) shall be entitled and empowered, by intervention in such proceeding or
otherwise to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of principal
(and premium, if any), interest and Liquidated Damages owing and
unpaid in respect of the Securities 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 under Section 7.7 for the
compensation, fees, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) To collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same in
accordance with Section 6.6;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the compensation, expenses, fees,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7. To the extent that the payment of
such compensation, expenses, fees, disbursements and advances of Trustee, its
agents and counsel and any other amounts due to the Trustee under Section 7.7
hereof out of the estate in any such judicial proceeding shall be denied for any
reason, payment of the same shall be secured by a perfected first priority
security interest in and lien on, and shall be paid out of, any and all
distributions, dividends, money securities and other properties that the Holders
may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise, and any such security
interest and lien in
43
favor of any predecessor Trustee shall be senior to the security interest and
lien in favor of the current Trustee.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, fees, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
Section 6.6. Priorities.
----------
Any money collected by the Trustee pursuant to this Article VI 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, premium
(if any), interest or Liquidated Damages, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee (including any predecessor Trustee) in payment
of all amounts due pursuant to Section 7.7;
SECOND: To the holders of Senior Indebtedness of the Company to the
extent provided in Article XII;
THIRD: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any), interest on and Liquidated Damages with
respect to, the Securities in respect or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium (if
any), interest and Liquidated Damages, respectively; and
44
FOURTH: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
The Trustee may fix a Record Date and Payment Date for any payment to
Holders pursuant to this Section at least 15 days before such Record Date. The
Trustee shall mail to each Holder and the Company a notice stating the Record
Date, Payment Date and amount to be paid.
Section 6.7. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct the
Trustee 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
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of then
outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to
be incurred or reasonably probable to be incurred in compliance with
such request;
(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(E) 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 then outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under
45
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal, Premium, and
-----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall, subject to the provisions of Article XII, have the right,
which is absolute and unconditional, to receive payment of the principal of, and
premium (if any), and interest on, such Security when due (including, in the
case of redemption, the Redemption Price on the applicable Redemption Date, and
in the case of the Repurchase Price, on the applicable Repurchase Date), to
convert such Security in accordance with Article XIII, and to institute suit for
the enforcement of any such payment and right to convert after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
Section 6.9. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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 6.10. Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.11. Control by Holders.
------------------
The Holder or Holders of no less than a majority in aggregate princi-
46
pal amount of then outstanding Securities shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred upon the Trustee,
provided that
- --------
(1) such direction shall be made in writing to the Trustee and
shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee shall not have determined that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction or would expose the Trustee to personal liability,
and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 6.12. Waiver of Default.
-----------------
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may, on behalf of all Holders,
prior to the declaration of acceleration of the maturity of the Securities,
waive any default hereunder and its consequences or compliance with any
provision of this Indenture or the Securities, except a default or compliance:
(A) in the payment of the principal of, premium, if any, interest
on any Security not yet cured as specified in clauses (1) and (2) of
Section 6.1, or
(B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the
Holder of each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
Section 6.13. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this
47
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted to be taken by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 6.13 shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of then outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of, premium
(if any), interest on or Liquidated Damages with respect to, any Security on or
after the respective Stated Maturity of such Security (including, in the case of
redemption, on or after the Redemption Date).
Section 6.14. 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, then and in every 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.
ARTICLE VII.
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.1. Duties of Trustee.
-----------------
(a) If a Default or 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.
48
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no others, and
no covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts purported to be stated
therein).
(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:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a written
direction received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any liability. The Trustee shall be under
no obligation to perform any of its rights or duties hereunder or to take or
omit to take any action under this Indenture or at the request, order or
direction of the Holders or in the exercise of any of its rights or powers
unless such Holders shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
49
(e) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c), (d) and (f) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any assets received by
it except as the Trustee may agree in writing with the Company. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.
Section 7.2. Rights of Trustee.
-----------------
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document reasonably 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.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel of its selection and may require an Officers' Certificate or an Opinion
of Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on any such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent (other
than an agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which reasonably believes to be authorized or within its
discretion, rights or powers conferred upon it 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, order or direction of
any of the Holders, pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby.
(f) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
50
(g) Except with respect to Section 4.1, the Trustee shall have no duty to
inquire as to the performance of the Company's covenants in Article IV hereof.
In addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default, except (i) any Event of Default occurring pursuant to Sections
6.1(1) or 6.1(2), or (ii) any Default or Event of Default of which a Trust
Officer of the Trustee shall have received written notification or obtained
actual knowledge.
(h) No permissive right of the Trustee to act hereunder shall be construed
as a duty.
(i) If in the administration of this Indenture the Trustee deems it desir-
able that a matter be proved or established prior to taking, suffering or
omitting to take any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate, an Opinion of Counsel, or both.
(j) The Trustee shall not be deemed to have notice or knowledge (including
actual knowledge) of any matter unless a Trust Officer has actual knowledge
thereof or unless written notice thereof is received by the Trustee at the
office specified in Section 14.2 and such notice references the Securities
generally, the Company or this Indenture.
(k) The Trustee may consult with counsel with respect to legal matters
relating to this Indenture or Notes and the advice or opinion of counsel shall
be full and complete authorization and protection from liability with respect to
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
Section 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, any
of its Subsidiaries, or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or
adequacy of
51
this Indenture, the Registration Rights Agreement, the Offering Memorandum or
the Securities and it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
in this Indenture or the Securities, other than the Trustee's certificate of
authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
Section 7.5. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder notice of
the uncured Default or Event of Default within 90 days after the date the same
is known by the Trustee or the Trustee receives written notice of the occurrence
of such Default or Event of Default unless such Default is cured or waived. The
Trustee may withhold such notice if and so long as a Trust Officer in good faith
determines that withholding the notice is in the interest of the Holders,
except in the case of a Default in payment of principal (or premium, if any) of,
interest on or Liquidated Damages with respect to, any Security (including the
payment of the Repurchase Price on the Repurchase Date and the payment of the
Redemption Price on the Redemption Date).
Section 7.6. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each November 15 beginning with the November
15 following the date of this Indenture, the Trustee shall, if required by law,
mail to each Holder a brief report dated as of such reporting date that complies
with TIA (S) 313(a) if and to the extent required by such Section 313(a). The
Trustee also shall comply with TIA (S)(S) 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and, if required, filed with the SEC and each stock
exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system or
of any delisting thereof.
Section 7.7. Compensation and Indemnity.
--------------------------
The Company agrees to pay to the Trustee from time to time such
compensation for its services as the parties shall agree from time to time in
writing
52
and, in the absence of such agreement, reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses, fees and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements, fees and expenses of
the Trustee's agents, accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, employees, attorneys-in-fact and
agents (each an "Indemnified Party") for, and hold them harmless against, any
and all claims, demands, expenses (including but not limited to reasonable
compensation, fees, disbursements and expenses of the Trustee's agents and
counsel), losses, damages or liabilities incurred by it without negligence, bad
faith or willful misconduct on the part of such Indemnified Party, arising out
of, related to, or in connection with the acceptance or administration of this
trust and its rights or duties hereunder, including the reasonable costs and
expenses, and the costs and expenses of enforcing this Indenture (including this
Section 7.7) against the Company and of defending itself against any claim
(whether asserted by the Company, or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. An Indemnified Party shall notify the Company promptly of any
claim asserted against such Indemnified Party for which it may seek indemnity.
Failure by an Indemnified Party to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and an
Indemnified Party shall provide reasonable cooperation at the Company's
expense in the defense. An Indemnified Party may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel; provided
--------
that (i) the Company will not be required to pay such fees and expenses if it
assumes the Indemnified Party's defense and there is no conflict of interest
between the Company and the Indemnified Party in connection with such defense
and (ii) the Company shall not be obligated to pay the fees and expenses of more
than one counsel (plus local counsel, if any) in any one proceeding (or related
proceedings), which counsel shall be selected by the Trustee. The Company need
not pay for any settlement made without its written consent.
The Company need not reimburse any expense or indemnify against
any loss or liability to the extent attributable to the negligence, bad faith or
willful misconduct of the Trustee or any other Indemnified Party.
To secure the Company's payment obligations in this Section 7.7,
the
53
Trustee and each predecessor Trustee shall have a perfected lien prior to the
Securities on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal and premium, if any, of or
interest on particular Securities. Any lien in favor of a predecessor Trustee
shall be senior to any lien in favor of the current Trustee.
When the Trustee incurs expenses or fees or renders services
after an Event of Default specified in Section 6.1(7) or (8) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provision of Section 313(b)(2)
of the TIA, to the extent applicable.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive indefinitely, including upon the resignation or
removal of the Trustee, the discharge of the Company's obligations pursuant to
Article VIII of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing.
The Holder or Holders of a majority in principal amount of then outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing. The Company, by Board of Directors resolution, may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any bankruptcy law;
(c) a receiver, Custodian, or other public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements
54
of this Section 7.8.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holder or Holders of a majority in principal amount of then outstanding
Securities may, with the Company's consent, appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appoint ment to the retiring Trustee and to the Company. Immediately upon
delivery of such notice and provided that all sums owing to the retiring Trustee
provided for in Section 7.7 have been paid, the retiring Trustee shall transfer
all property held by it as trustee to the successor Trustee, subject to the lien
provided in Section 7.7, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Holder.
If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holder or Holders of at least 10% in principal amount of then outstanding
Securities may, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Holder who has been
a Holder for at least six months, fails to comply with Section 7.10, any such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue
indefinitely for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
55
Section 7.10. Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA
(S) 310(a)(1), (2) and (5). The Trustee and its direct parent or, in the case of
a corporation included in a bank holding company system, the related bank
holding company, shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any
creditor relationship listed in TIA (S) 311(b). A Trustee who has resigned or
been removed shall be subject to TIA (S) 311(a) to the extent indicated.
Section 7.12. Other Capacities.
----------------
All references in this Indenture to the Trustee shall be deemed
to refer to the Trustee in its capacity as Trustee and in its capacities as any
Agent, to the extent acting in such capacities, and every provision of this
Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacity as any Agent.
ARTICLE VIII.
SATISFACTION AND DISCHARGE
Section 8.1. Satisfaction and Discharge of Indenture.
---------------------------------------
The Company may terminate its obligations under this Indenture
(subject to the provisions of this Article VIII and Section 7.7) when it shall
have delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Article II
hereof) and the following conditions shall be satisfied:
(1) The Company has paid all sums payable under the
Indenture; and
56
(2) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United
States, each stating that all conditions precedent have been
complied with as contemplated by this Section 8.1.
Section 8.2. Repayment to the Company.
------------------------
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, for the payment of the principal of, premium, if any,
interest on or Liquidated Damages with respect to any Security and remaining
unclaimed for two years after such principal, premium, if any, interest or
Liquidated Damages has become due and payable shall be paid to the Company on
its written request; and the Holder of such Security shall thereafter look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holder, the Company, when authorized
by Board Resolutions, 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 cure any ambiguity, defect, or inconsistency;
(2) to create additional covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or to make any other change that does
not materially adversely affect the rights of any Holder;
(3) to provide for collateral for or guarantors of the
Securities;
(4) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
obligations
57
of the Company herein and in the Securities in accordance with
Article V;
(5) to comply with the TIA; or
(6) to provide for uncertificated Notes in addition to or
in place of certificated Notes.
The Company shall deliver to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with this Section 9.1.
Section 9.2. Amendments, Supplemental Indentures and Waivers with Consent of
---------------------------------------------------------------
Holders.
- -------
Subject to the last sentence of this paragraph, with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding, by written act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by Board Resolutions,
and the Trustee may amend or supplement this Indenture or the Securities or
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 the Securities or of modifying in any manner the
rights of the Holders under this Indenture or the Securities. Subject to the
last sentence of this paragraph, the Holder or Holders of not less than a
majority in aggregate principal amount of then outstanding Securities may, in
writing, waive compliance by the Company with any provision of this Indenture or
the Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(1) change the Stated Maturity of any Security or reduce
the principal amount thereof or the rate (or extend the time for
payment) of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the
coin or currency in which, any Security or any premium or the
interest thereon with respect thereto is payable, or impair the
right to institute suit for the conversion of any Security or the
enforcement of any such payment on or after the due date thereof
(including, in the case of redemption, on or after the Redemption
Date), or reduce the Repurchase Price, or alter the Repurchase
Offer (other than as set forth herein) or redemption provisions
in a manner adverse to the Holders;
58
(2) reduce the percentage in principal amount of the
outstanding Securities, the consent of whose Holders is required
for any such amendment, supplemental indenture or waiver provided
for in the Indenture;
(3) adversely affect the right of such Holder to convert
Securities or the rights of any holder conferred by Article XIII;
or
(4) reduce the percentage of the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver
or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of
each out standing Security affected thereby.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby at
such Holders' addresses as the same appear on the registry books of the
Registrar a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2
or Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or (at the option of the
Company) to all Holders, consideration for consent to such amendment,
supplement or waiver.
Section 9.3. Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
59
Section 9.4. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Company, the Trustee or the Person designated by the Company as the Person
to whom consents should be sent if such revocation is received by the Company or
such Person before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
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,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.
Notwithstanding the preceding paragraph, after an amendment,
supplement or waiver becomes effective, it shall bind every Holder, unless it
makes a change described in any of clauses (1) through (4) of Section 9.2, in
which case, the amendment, supplement or waiver shall bind only each Holder of a
Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security unless consent of all Holders has been obtained pursuant to clauses (1)
through (4) of Section 9.2.
Section 9.5. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall
60
authenticate a new Security that reflects the changed terms. Any failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
Section 9.6. Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but shall
--------
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture.
ARTICLE X.
MEETINGS OF HOLDERS
Section 10.1. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to waive or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions of
Article VI;
(b) to remove the Trustee or appoint a successor Trustee pursuant to the
provisions of Article VII;
(c) to consent to an amendment, supplement or waiver pursuant to
provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken by or on behalf of
the Holder or Holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
61
Section 10.2. Manner of Calling Meetings.
--------------------------
The Trustee may at any time call a meeting of Holders to take any
action specified in Section 10.1, to be held at such time and at such place in
New York, New York or elsewhere as the Trustee shall determine. Notice of every
meeting of Holders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
at the Company's expense by the Trustee, first-class postage prepaid, to the
Company and to the Holders at their last addresses as they shall appear on the
registration books of the Registrar, not less than 10 nor more than 60 days
prior to the date fixed for a meeting.
Any meeting of Holders shall be valid without notice if the Holders of
all Securities then outstanding are present in Person or by proxy, or if notice
is waived before or after the meeting by the Holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 10.3. Calling of Meetings by the Company or Holders.
---------------------------------------------
In case at any time the Company or the Holders of not less than 10% in
aggregate principal amount of the Securities then outstanding, shall have
requested the Trustee to call a meeting of Holders to take any action specified
in Section 10.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such written
request, then the Company or the Holders of Securities in the amount above
specified may determine the time and place in New York, New York or elsewhere
for such meeting and may call such meeting for the purpose of taking such
action, by mailing or causing to be mailed notice thereof as provided in Section
10.2, or by causing notice thereof to be published at least once in each of two
successive calendar weeks (on any Business Day during such week) in a newspaper
or newspapers printed in the English language, customarily published at least
five days a week of a general circulation in the City of New York, State of New
York, the first such publication to be not less than 10 nor more than 60 days
prior to the date fixed for the meeting.
Section 10.4. Who May Attend and Vote at Meetings.
-----------------------------------
To be entitled to vote at any meeting of Holders, a Person shall (a)
be
62
a registered Holder of one or more Securities, or (b) be a Person appointed by
an instrument in writing as proxy for the registered Holder or Holders of
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company, and its counsel.
Section 10.5. Regulations May Be Made by Company; Conduct of the Meeting:
-----------------------------------------------------------
Voting Rights: Adjournment.
--------------------------
Notwithstanding any other provision of this Indenture, the Company may
make such reasonable regulations as it may deem advisable for any action by or
any meeting of Holders, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Securities
entitled to vote at such meeting, in which case those and only those Persons who
are Holders of Securities at the record date and time so fixed, or their
proxies, shall be entitled to vote at such meeting whether or not they shall be
such Holders at the time of the meeting.
The Holders shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 10.3, in which case the Company or
the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Securities represented at the meeting and entitled to vote.
At any meeting each Securityholder or proxy shall be entitled to one
vote for each $1,000 principal amount of Securities held or represented by him,
in whole vote increments; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Securities challenged as not
outstanding and ruled by the chairman of the meeting to be not then outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the proxy to vote on behalf of other Holders. Any meeting of Holders duly
called pursuant to the provisions of Section 10.2 or Section 10.3 may be
adjourned from time to time by vote of the Holder or Holders of a majority in
aggregate principal amount of the Securities
63
represented at the meeting and entitled to vote, and the meeting may be held as
so adjourned without further notice.
Section 10.7. Voting at the Meeting and Record to Be Kept.
-------------------------------------------
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities or of their representatives by proxy and the principal amount of
the Securities voted by the ballot. The permanent chairman of the meeting shall
appoint two inspectors of votes, who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
such record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts, setting forth a copy of the notice of the meeting and showing that
such notice was mailed as provided in Section 10.2 or published as provided in
Section 10.3. The record shall be signed and verified by the affidavits of the
permanent chairman and the secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.8. Exercise of Rights of Trustee or Holders May Not Be Hindered or
---------------------------------------------------------------
Delayed by Call of Meeting.
--------------------------
Nothing contained in this Article X shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders under any of the provisions of this Indenture or of
the Securities.
ARTICLE XI.
RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
Section 11.1. Repurchase of Securities at Option of the Holder Upon a Change of
-----------------------------------------------------------------
64
Control.
-------
(a) Subject to Section 11.2, in the event that a Change of Control has
occurred, the Company shall offer, subject to the terms and conditions of this
Indenture, to purchase all or any part of each Holder's Securities (provided
--------
that the principal amount of such Securities must be $1,000 or an integral
multiple thereof) on the date (the "Repurchase Date") fixed in the manner
provided in this Section 11.1 that is no later than 45 Business Days (except as
hereinafter provided) after the occurrence of such Change of Control, at a cash
price (the "Repurchase Price") equal to 100% of the principal amount thereof,
together with accrued and unpaid interest and Liquidated Damages, if any, to
(but excluding) the Repurchase Date.
(b) In the event that, pursuant to this Section 11.1, the Company shall be
required to commence an offer to purchase Securities (a "Repurchase Offer"), the
Company shall follow the procedures set forth in this Section 11.1 as follows:
(1) the Repurchase Offer shall commence on the date specified by
the Company that shall be within 25 Business Days following a Change of
Control;
(2) the Repurchase Offer shall remain open for 20 Business Days
following its commencement, except to the extent that a longer period
is required by applicable law (the "Repurchase Offer Period");
(3) upon the expiration of a Repurchase Offer, the Company shall
purchase all Securities tendered in response to the Repurchase Offer;
(4) if the Repurchase Date is on or after an interest payment
Record Date and on or before the related Interest Payment Date, any
accrued interest and Liquidated Damages will be paid to the Person in
whose name a Security is registered at the close of business on such
Record Date, and no additional interest or Liquidated Damages will be
payable to Holders who tender Securities pursuant to the Repurchase
Offer;
(5) the Company shall provide the Trustee with written notice of
the Repurchase Offer at least 5 Business Days before the commencement
of any Repurchase Offer (or such shorter period that
65
is satisfactory to the Trustee); and
(6) on or before the commencement of any Repurchase Offer, the
Company or the Trustee (upon the request and at the expense of the Company)
shall send, by first-class mail, a notice to each of the Holders, which (to
the extent consistent with this Indenture) shall govern the terms of the
Repurchase Offer and shall state:
(i) that the Repurchase Offer is being made pursuant to such notice and
this Section 11.1 and that all Securities, or portions thereof, tendered will be
accepted for payment;
(ii) the Repurchase Price (including the amount of accrued and unpaid
interest and Liquidated Damages, if any), the Repurchase Date and the Repurchase
Put Date;
(iii) that any Security, or portion thereof, not tendered and accepted
for payment will continue to accrue interest and Liquidated Damages, if any;
(iv) that, unless the Company defaults in depositing Cash with the
Paying Agent in accordance with the last paragraph of this clause (b) or such
payment is prevented pursuant to Article XII, any Security, or portion thereof,
accepted for payment pursuant to the Repurchase Offer shall cease to accrue
interest after the Repurchase Date;
(v) that Holders electing to have a Security, or portion thereof,
purchased pursuant to a Repurchase Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) at the address
specified in the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Repurchase Date and (b) the third Business Day
following the expiration of the Repurchase Offer (such earlier date being the
"Repurchase Put Date");
(vi) that Holders will be entitled to withdraw their election, in whole or
in part, if the Paying Agent (which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary, be the Company or
any Affiliate of the Company) receives, up to the close of
66
business on the Repurchase Put Date, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Securities
purchased; and
(vii) a brief description of the events resulting in such Change of
Control.
Any notice of a Repurchase Offer mailed in accordance with the
foregoing provisions shall be conclusively presumed to have been duly given
whether or not a given Holder receives the same.
Any such Repurchase Offer shall comply with all applicable provisions
of federal and state laws, including those regulating tender offers, if
applicable, and any provisions of this Indenture which conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
On or before the Repurchase Date, the Company shall, to the extent
lawful, (i) accept for payment Securities or portions thereof properly tendered
pursuant to the Repurchase Offer on or before the Repurchase Put Date, (ii)
deposit with the Paying Agent Cash sufficient to pay the Repurchase Price
(together with accrued and unpaid interest and Liquidated Damages, if any) of
all Securities or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to Holders of Securities so
accepted payment in an amount equal to the Repurchase Price (together with
accrued and unpaid interest and Liquidated Damages, if any), and the Trustee
will promptly authenticate and mail or deliver to such Holders a new Security or
Securities equal in principal amount to any unpurchased portion of the
Securities surrendered. Any Securities not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Repurchase Offer on or as soon as practicable after
the Repurchase Date.
Section 11.2. Rescission of Change of Control Determination.
---------------------------------------------
At any time prior to the close of business on the Business Day
immediately preceding the Repurchase Date, the Holders of more than 66-2/3% in
aggregate principal amount of the then outstanding Securities, by written act of
said Holders delivered to the Company and the Trustee, may determine that the
event
67
giving rise to the Change of Control shall not be treated as a Change of Control
for purposes of Section 11.1, in which event:
(1) the provisions of Section 11.1(a) shall not apply;
(2) if a Repurchase Offer has been made by the Company pursuant
to Section 11.1(b), such Repurchase Offer shall be deemed revoked; and
(3) if any Securities have been tendered in response to the
revoked Repurchase Offer, such tenders shall be deemed rescinded and
the Securities promptly returned to the Holders thereof.
Following a determination by the Holders pursuant to this Section
11.2, the Company shall mail to all Holders a notice briefly describing such
determination. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such determination. An effective determination under this Section 11.2 shall be
binding on all holders.
ARTICLE XII.
SUBORDINATION
Section 12.1. Securities Subordinated to Senior Indebtedness.
----------------------------------------------
The Company and each Holder, by its acceptance of Securities, agree
that (a) the payment of the principal of, premium, if any, and interest on and
Liquidated Damages with respect to, the Securities and (b) any other payment in
respect of the Securities, including on account of the acquisition or redemption
of the Securities by the Company (but specifically excluding payments to the
Trustee for its own benefit), is subordinated, to the extent and in the manner
provided in this Article XII, to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter created, incurred, assumed or guaranteed, and that these
subordination provisions are for the benefit of the holders of Senior
Indebtedness.
This Article XII shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of
68
them may enforce such provisions. In addition, the payment of cash, property or
securities (other than Junior Securities) upon conversion of a Security pursuant
to Article XIII will constitute payment on a Security and therefore will be
subject to the subordination provisions contained in this Indenture.
Section 12.2. No Payment on Securities in Certain Circumstances.
-------------------------------------------------
(a) No payment (by setoff or otherwise) may be made by or on behalf of the
Company, directly or indirectly through an Subsidiary, on account of the
principal of, premium, if any, interest on, or Liquidated Damages or any other
obligations under or with respect to, the Securities, or to acquire any of the
Securities (including repurchases of Securities at the option of the Holder) for
cash or property (other than Junior Securities), or on account of the redemption
provisions of the Securities (collectively, the "Subordinated Obligations"), (i)
upon the maturity of any Senior Indebtedness by lapse of time, acceleration
(unless waived) or otherwise, unless and until all principal of, premium, if
any, and interest on, and fees, charges, expenses, indemnifications and all
other amounts payable in respect of Senior Indebtedness are first paid in full
in cash, or (ii) in the event of default in the payment of any principal of,
premium, if any, or interest in respect of Senior Indebtedness when it becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise (collectively, a "Payment Default"), unless and until
such Payment Default has been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than a Payment
Default) that permits, or would permit, with (w) the passage of time, (x) the
giving of notice, (y) the making of any payment of the Securities then required
to be made, or (z) any combination thereof (collectively, a "Non-Payment
Default"), the holders of any Designated Senior Indebtedness or their
representative immediately to accelerate its maturity and (ii) written notice of
such Non-Payment Default given to the Company and the Trustee by the holders of
such Designated Senior Indebtedness or their representative (a "Blockage
Notice"), then, unless and until such Non-Payment Default has been cured or
waived or otherwise has ceased to exist, no payment (by set-off or otherwise)
may be made by or on behalf of the Company directly or through any Subsidiary on
account of the Subordinated Obligations. Notwithstanding the foregoing, on
the first to occur of (i) the date that is 179 days after the Blockage Notice is
delivered as set forth above (the "Payment Blockage Period"), and (ii) the date
on which all Payment Defaults and Non-Payment Defaults have been cured or
waived, the Company shall be required to pay to the Holders of the Securities
all regularly scheduled payments on the Securities that were not paid to the
Holders of the Securities during the Payment Blockage Period due to the
foregoing
69
prohibitions (and upon the making of such payments any acceleration of the
Securities made or other remedies commenced during the Payment Blockage Period
shall be of no further force or effect) and to resume all other payments as and
when due on the Securities, provided that no Payment Default shall have occurred
and be continuing. Not more than one Blockage Notice may be given in any
consecutive 365-day period, irrespective of the number of defaults with respect
to Senior Indebtedness during such period. In no event, however, may the total
number of days during which any Payment Blockage Period is or Payment Blockage
Periods are in effect exceed 179 days in the aggregate during any consecutive
365-day period.
(c) In furtherance of the provisions of Section 12.1, in the event that,
notwithstanding the foregoing provisions of this Section 12.2, any payment or
distribution of assets of the Company (other than Junior Securities) shall be
received by the Trustee on behalf of the Holders or any Paying Agent for the
benefit of the Holders at a time when such payment or distribution is prohibited
by the provisions of this Section 12.2, such payment or distribution (subject to
the provisions of Sections 12.6 and 12.9) shall be held in trust for the benefit
of the holders of Senior Indebtedness, and shall be paid or delivered by such
Holders or the Trustee or such Paying Agent, as the case may be, to the holders
of Senior Indebtedness of the Company remaining unpaid or their representative
or representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness of the
Company may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness of the Company held or
represented by each, for application to the payment of all Senior Indebtedness
of the Company in full after giving effect to any concurrent payment and
distribution to the holders of such Senior Indebtedness.
Section 12.3. Securities Subordinated to Prior Payment of All Senior
------------------------------------------------------
Indebtedness on Dissolution Liquidation or Reorganization.
---------------------------------------------------------
Upon any distribution of assets of the Company upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or a
similar proceeding or upon assignment for the benefit of creditors or any
marshaling of assets or liabilities:
(a) the holders of all Senior Indebtedness of the Company shall first be
entitled to receive payments in full in cash before the Holders are entitled to
receive any payment (other than Junior Securities) on account of the
Subordinated Obligations;
70
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior
Securities) to which the Holders or the Trustee on behalf of the Holders would
be entitled (by setoff or otherwise), except for the provisions of this Article
XII, shall be paid by the liquidating trustee or agent or other Person making
such a payment or distribution directly to the holders of Senior Indebtedness or
their representative to the extent necessary to make payment in full in cash of
all such Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness
(but this Section 12.3(b) shall not apply to payments or distributions to the
Trustee for its own benefit); and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or any Subsidiary of any kind or
character, whether in cash, property or securities (other than Junior Securities
as aforesaid), shall be received by the Trustee for the benefit of the Holders
or the Holders or any Paying Agent for the benefit of the Holders (or, if the
Company or any Affiliate of the Company is acting as its own Paying Agent, money
for any such payment or distribution shall be segregated or held in trust) on
account of Subordinated Obligations before all Senior Indebtedness is paid in
full, such payment or distribution (subject to the provisions of Sections 12.6
and 12.9) shall be held in trust for the benefit of the holders of Senior
Indebtedness, and shall be paid or delivered by such Holders or the Trustee or
such Paying Agent, as the case may be, to the holders of Senior Indebtedness of
the Company remaining unpaid or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness of the Company may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness of the Company held or represented by each, for application
to the payment of all Senior Indebtedness of the Company in full in cash after
giving effect to any concurrent payment and distribution to the holders of such
Senior Indebtedness.
Section 12.4 Holders to Be Subrogated to Rights of Holders of Senior
-------------------------------------------------------
Indebtedness.
- ------------
Subject to the payment in full in cash of all Senior Indebtedness of
the Company as provided herein, the Holders of Securities shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions
71
of assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders by virtue of this
Article XII, which otherwise would have been made to the Holders shall, as
between the Company and the Holders, be deemed to be payment by the Company or
on account of such Senior Indebtedness, it being understood that the provisions
of this Article XII are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of such Senior
Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article XlI shall have been
applied, pursuant to the provisions of this Article XII, to the payment of
amounts payable under Senior Indebtedness of the Company, then the Holders shall
be entitled to receive from the holders of such Senior Indebtedness any payments
or distributions received by such holders of Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash.
Section 12.5 Obligations of the Company Unconditional.
----------------------------------------
Nothing contained in this Article XII or elsewhere in this Indenture
or in the Securities is intended to or shall impair as between the Company and
the Holders, the obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest on, the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein 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 XII, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article XII or elsewhere in
this Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article XII, the Trustee, subject to the provisions
of Sections 7.1 and 7.2, and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the Persons entitled to participate in such
72
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII so long as such court has been apprised of the provisions of, or the order,
decree or certificate makes reference to, the provisions of this Article XII.
Nothing in this Section 12.5 shall apply to the claims of, or payments to, the
Trustee under or pursuant to Section 7.7 or otherwise for its own benefit.
Section 12.6 Trustee and Other Agents Entitled to Assume Payments Not Prohibited
-------------------------------------------------------------------
in Absence of Notice.
- --------------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities by virtue of the operation of this
Article XII, but failure to give such notice shall not affect the subordination
of the Securities pursuant to this Article XII. The Trustee and all other
Agents shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee unless
and until a Trust Officer of the Trustee or any Paying Agent shall have actually
received, no later than one Business Day prior to such payment, written notice
thereof in compliance with Section 14.2 from the Company or from one or more
holders of Senior Indebtedness or from any representative therefor and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Sections 7.1 and 7.2, shall be entitled in all respects conclusively to
assume that no such fact exists.
Section 12.7 Subordination Rights Not Impaired by Acts or Omissions of the
-------------------------------------------------------------
Company or Holders of Senior Indebtedness.
- -----------------------------------------
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article XII shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with. Without the consent of or notice to the Trustee or the
Holders, the holders of Senior Indebtedness may extend, renew, modify or amend
the terms of the Senior Indebtedness or any security therefor and release,
sell or exchange such security and otherwise deal freely with the Company, all
without impairing the liabilities and obligations of the parties to this
Indenture or the Holders.
73
Section 12.8 Holders Authorize Trustee to Effectuate Subordination of
--------------------------------------------------------
Securities.
- ----------
Each Holder of the Securities by his acceptance thereof authorizes the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provisions contained in this Article XII pursuant
to this Indenture, and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors of the Company),
the immediate filing of a claim for the unpaid balance of his Securities in the
form required in said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Indebtedness or their
representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebted ness or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 12.9 Right of Trustee to Hold Senior Indebtedness.
--------------------------------------------
The Trustee and any Agent shall be entitled to all of the rights set
forth in this Article XII 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 be construed to deprive the Trustee or any Agent of any
of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
Section 12.10 Article XII Not to Prevent Events of Default.
--------------------------------------------
The failure to make a payment on account of principal of, premium, if
any, interest on, or Liquidated Damages with respect to, the Securities by
reason of any provision of this Article XII shall not be construed as preventing
the occurrence of a Default or an Event of Default under Section 6.1 or in any
way prevent the
74
Holders from exercising any right hereunder other than the right to receive
payment on the Securities.
Section 12.11 No Duty of Trustee and Other Agents to Holders of Senior
--------------------------------------------------------
Indebtedness.
- ------------
The Trustee and the other Agents shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to
any such holders (other than for its willful misconduct or negligence) if it
shall in good faith mistakenly pay over or distribute to the Holders of
Securities or the Company or any other Person, cash, property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article XII or otherwise. Nothing in this Section 12.12 shall affect the
obligation of any other such Person receiving such payment or distribution from
the Trustee or any other Agent to hold such payment for the benefit of, and to
pay such payment over to, the holders of Senior Indebtedness or their
representative.
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 XII and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture as against the Trustee.
ARTICLE XIII.
CONVERSION OF SECURITIES
Section 13.1 Conversion Privilege.
--------------------
Subject to and upon compliance with the provisions of this Article
XIII, at the option of the Holder thereof, any Security may at any time, be
converted, in whole, or in part in multiples of $1,000 principal amount, into
fully paid and non-assessable shares of Common Stock issuable upon conversion of
the Securities, at the conversion price in effect at the Date of Conversion,
until and including, but not after the close of business on the Stated Maturity,
unless such Security or some portion thereof shall have been called for
redemption or delivered for repurchase prior to such date and no default is made
in making due provision for the payment of the Redemption Price in accordance
with the terms of this Indenture, in which case, with respect to such Security
or portion thereof as has been so called for redemption or delivered for
repurchase, such Security or portion thereof may be so converted
75
until and including, but not after, the close of business on the Business Day
immediately prior to the Redemption Date or Repurchase Date, as applicable, for
such Security, unless the Company subsequently fails to pay the applicable
Redemption Price or Repurchase Price, as the case may be.
Section 13.2 Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Company at any
time during usual business hours at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security, that
the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of $1,000 principal amount, and, if such Security is
surrendered for conversion during the period between the close of business on
any Record Date and the opening of business on the next following Interest
Payment Date and has not been called for redemption on a Redemption Date or
repurchase on a Repurchase Date which occurs within such period, accompanied
(except in the case of the Interest Payment Date occurring on November 15, 2001)
by payment in New York clearing house funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of the Security being surrendered for conversion,
notwithstanding such conversion and the interest payable in respect of such
Security on such Interest Payment Date shall be paid to the Holder of such
Security as of the Record Date. Interest payable in respect of a Security
surrendered for conversion on or after an Interest Payment Date shall be paid to
the Holder of such Security as of the next preceding Record Date,
notwithstanding the exercise of the right of conversion. Such notice of
conversion shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock shall be issued.
Securities surrendered for conversion shall (if reasonably required by the
Company or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company duly
executed by, the Holder or his attorney duly authorized in writing, with
appropriate signature guarantee. As promptly as practicable after the receipt of
such notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 13.8 hereof, issue and deliver at such
office or agency to such Holder, or on his written order, a certificate or
certificates for the number of full shares of Common Stock issuable on such
conversion of Securities in accordance with the provisions of this Article XIII
and Cash, as provided in Section 13.3 hereof, in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately
76
prior to the close of business on the date (herein called the "Date of
Conversion") on which such Security shall have been surrendered as aforesaid,
and the person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of record
of the shares represented thereby; provided, however, that any such surrender on
-------- -------
any date when the stock transfer books of the Company shall be closed shall
cause the person or persons in whose name or names the certificate or
certificates for such shares are to be issued to be deemed to have become the
record holder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open but such
conversion shall nevertheless be at the conversion price in effect at the close
of business on the date when such Security shall have been so surrendered with
the conversion notice. In the case of conversion of a portion, but less than
all, of a Security, the Company shall as promptly as practicable execute, and
the Trustee shall thereafter authenticate and deliver to the Holder thereof, at
the expense of the Company, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of any
Security.
Section 13.3 Fractional Interests.
--------------------
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Common Stock would, except for the foregoing provisions
of this Section 13.3, be issuable on the conversion of any Security or
Securities, the Company shall make payment in lieu thereof in an amount of Cash
equal to the value of such fraction computed on the basis of the last sale price
of the Common Stock as reported on the New York Stock Exchange (or if not listed
for trading thereon, then on the principal national securities exchange or on
the principal automated quotation system on which the Common Stock is listed or
admitted to trading) at the close of business on the Date of Conversion or if no
such sale takes place on such day, the last sale price for such day shall be the
average of the closing bid and asked prices regular way on the New York Stock
Exchange (or if not listed for trading thereon, on the principal national
securities exchange or on the principal automated quotation system on which the
Common Stock is listed or admitted to trading) for such day (any such last
77
sale price being hereinafter referred to as the "Last Sale Price"). If on the
Date of Conversion, the Common Stock is not quoted by any such organization, the
fair value of such Common Stock on such day, as reasonably determined in good
faith by the Board of Directors of the Company, shall be used.
Section 13.4 Conversion Price.
----------------
The conversion price per share of Common Stock issuable upon
conversion of the Securities (as such price may be adjusted, herein called the
"Conversion Price") shall initially be $32.81 (which reflects a conversion rate
of 30.4785 shares of Common Stock per $1,000 in principal amount of Securities).
Section 13.5 Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) In case there shall be made or paid a dividend or made a distribution
in shares of Common Stock on any class of Capital Stock of the Company, the
Conversion Price in effect immediately following the record date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on such date and the denominator shall be the sum of
such number of shares and the total number of shares constituting such dividend
or other distribution. An adjustment made pursuant to this subsection (a) shall
become effective immediately, except as provided in subsection (i) and (j)
below, after such record date.
(b) In case the Company shall (1) subdivide or reclassify its outstanding
shares of Common Stock into a greater number of shares or (2) combine or
reclassify its outstanding shares of Common Stock into a smaller number of
shares, the Conversion Price in effect immediately following the effectiveness
of such action shall be adjusted by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination and the
denominator shall be the number of shares outstanding immediately after giving
effect to such subdivision, combination or reclassification. An adjustment made
pursuant to this subsection (b) shall become effective immediately, except as
provided in subsection (i) and (j) below, after the effective date of a
subdivision, combination or reclassification.
78
(c) In case there shall be an issuance of rights, options or warrants to
all or substantially all holders of Common Stock entitling them to subscribe for
or purchase shares of Common Stock at a price per share less than the then
current market price per share of the Common Stock (as determined pursuant to
subsection (g) below) on the record date fixed for determination of the
shareholders entitled to receive such rights, option or warrants, the Conversion
Price in effect immediately following such record date shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(i) such Conversion Price by a fraction, of which
(ii) the numerator shall be (A) the number of shares of Common Stock
outstanding on such record date plus (B) the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market price
(determined by multiplying such total number of shares by the exercise
price of such rights, options or warrants and dividing the product so
obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of Common
Stock outstanding on such record date plus (B) the number of additional
shares of Common Stock which are so offered for subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (i) and (j) below, after the record date for the determination of
holders entitled to receive such rights, options or warrants; provided, however,
-------- -------
that if any such rights, options or warrants issued by the Company as described
in this subsection (c) are only exercisable upon the occurrence of certain
triggering events, then the Conversion Price will not be adjusted as provided in
this subsection (c) until such triggering events occur. Upon the expiration or
termination of any rights, options or warrants without the exercise of such
rights, options or warrants, the Conversion Price then in effect shall be
adjusted immediately to the Conversion Price which would have been in effect at
the time of such expiration or termination had such rights, options or warrants,
to the extent outstanding immediately prior to such expiration or termination,
never been issued.
(d) In case there shall be a distribution to all or substantially all
holders of Common Stock, of any assets, evidences of indebtedness, cash or
securities (other than (x) dividends or distributions exclusively in cash, (y)
any dividend or distribution for which an adjustment is required to be made in
accordance with subsection
79
(a) or (c) above and in mergers and consolidations to which Section 13.6
applies, or (z) any distribution of rights or warrants subject to subsection (1)
below or any distribution in connection with a liquidation, dissolution or
winding up of the Company) then in each such case the Conversion Price in effect
immediately following the record date fixed for the determination of the
shareholders entitled to such distribution shall be adjusted so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction of which the numerator shall be the then current market price per share
of the Common Stock (determined as pro vided in subsection (g) below) on such
record date less the then fair market value (as reasonably determined in good
faith by the Board of Directors of the Company) of the portion of the assets so
distributed applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of the Common Stock
(determined as provided in subsection (g) below). Such adjustment shall become
effective immediately, except as provided in subsection (i) and (j) below, after
the record date for the determination of shareholders entitled to receive such
distribution.
(e) In case there shall be made any distribution consisting exclusively of
cash (excluding any cash portion of distributions for which an adjustment is
required to be made in accordance with subsection (d) above, or cash distributed
upon a merger or consolidation to which Section 13.6 applies) to all or
substantially all holders of Common Stock in an aggregate amount that, combined
together with (i) all other such all-cash distributions made within the 12
months immediately preceding the record date fixed for determination of the
shareholders entitled to such distribution in respect of which no adjustment
pursuant to this subsection (e) has been made and (ii) any cash and the fair
market value of other consideration paid or payable in respect of any tender
offer by the Company or any of its Subsidiaries for Common Stock concluded
within the 12 months immediately preceding the record date fixed for determining
the shareholders entitled to such distribution in respect of which no adjustment
has been made, exceeds 15.0% of the Company's market capitalization (defined as
being the product of the then current market price of the Common Stock
(determined as provided in subsection (g) below) times the number of shares of
Common Stock then outstanding) on the record date fixed for the determination of
the shareholders entitled to such distribution, in each such case the Conversion
Price immediately following such record date shall be adjusted so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction of which the numerator shall be the then current market price per share
of the Common Stock (determined as provided in subsection (g) below) on such
record date less the amount of the cash and/or fair market value (as reasonably
determined in good faith by the Board of Directors of the Company) of other
consideration so
80
distributed applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of the Common Stock.
Such adjustment shall become effective immediately, except as provided in
subsection (i) and (j) below, after the record date for the determination of
shareholders entitled to receive such distribution.
(f) In case the Company or any Subsidiary of the Company shall complete a
tender offer for all or any portion of the Common Stock (any such tender offer
being referred to as an "Offer") that involves an aggregate consideration having
a fair market value as of the expiration of such Offer (the "Expiration Time")
that, together with (i) any cash and the fair market value of any other
consideration payable in respect of any other tender offer, as of the expiration
of such other tender offer, expiring within the 12 months preceding the
expiration of such Offer and in respect of which no Conversion Price adjustment
pursuant to this subsection (f) has been made and (ii) the aggregate amount of
any all-cash distributions referred to in subsection (e) of this Section 13.5 to
all holders of Common Stock within the 12 months preceding the expiration of
such Offer for which no conversion price adjustment pursuant to such subsection
(e) has been made, exceeds 15.0% of the product of the then current market price
per share (determined as provided in subsection (g) below) of the Common Stock
at the Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time, the Conversion Price in
effect immediately following such Expiration Time shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator shall be
(i) the product of the then current market price per share (determined as
provided in subsection (g) below) of the Common Stock at the Expiration Time
times the number of shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time minus (ii) the fair market value of the aggregate
consideration payable to shareholders based on the acceptance (up to any maximum
specified in the terms of the Offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted being
referred to as the "Purchased Shares") and the denominator shall be the product
of (i) such current market price per share at the Expiration Time times (ii)
such number of outstanding shares at the Expiration Time less the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time.
For purposes of this subsection (f), the fair market value of any
consideration with respect to an Offer shall be reasonably determined in good
faith by the Board of Directors of the Company and described in a Board
Resolution.
81
(g) For the purpose of any computation under subsections (c), (d), (e) and
(f) above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices of a share of Common Stock
for the five consecutive Trading Days selected by the Company commencing not
more than 20 Trading Days before, and ending not later than, the earlier of the
date in question and the date before the "'ex' date," with respect to the
issuance, distribution or Offer requiring such computation. If on any such
Trading Day the Common Stock is not quoted by any organization referred to in
the definition of Last Sale Price in Section 13.3 hereof, the fair value of the
Common Stock on such day, as reasonably determined in good faith by the Board
of Directors of the Company, shall be used. For purposes of this paragraph, the
term "'ex' date," when used with respect to any issuance, distribution or
payments with respect to an Offer, means the first date on which the Common
Stock trades regular way on the New York Stock Exchange (or if not listed or
admitted to trading thereon, then on the principal national securities exchange
or the principal automated quotation system if the Common Stock is listed or
admitted to trading thereon) without the right to receive such issuance,
distribution or Offer.
(h) In addition to the foregoing adjustments in subsections (a), (b), (c),
(d), (e) and (f) above, the Company, from time to time and to the extent
permitted by law, may reduce the Conversion Price by any amount for at least 20
Business Days, if the Board of Directors has made a determination, which
determination shall be conclusive, that such reduction would be in the best
interests of the Company. The Company shall give notice to the Trustee and cause
notice of such reduction to be mailed to each Holder of Securities at such
Holder's address as the same appears on the registry books of the Registrar, at
least 15 days prior to the date on which such reduction commences. The Company
may, at its option, also make such reductions in the Conversion Price in
addition to those set forth above, as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of shares of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for United States federal income tax
purposes.
(i) In any case in which this Section 13.5 shall require that an adjustment
be made immediately following a record date, the Company may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Company shall, with respect to any Security converted after such record date and
on and before such adjustment shall have become effective (i) defer paying any
Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such
Security the number of shares
82
of Common Stock and other capital stock of the Company (or other assets or
securities) issuable upon such conversion in excess of the number of shares of
Common Stock and other Capital Stock of the Company issuable thereupon only on
the basis of the Conversion Price prior to adjustment, and (ii) not later than
five Business Days after such adjustment shall have become effective, pay to
such Holder the appropriate Cash payment pursuant to Section 13.3 hereof and
issue to such Holder the additional shares of Common Stock and other Capital
Stock of the Company issuable on such conversion. Notwithstanding the foregoing,
no adjustment of the Conversion price shall be made if the event giving rise to
such adjustment does not occur.
(j) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1.0% of the
Conversion Price; provided that any adjustments which by reason of this
--------
subsection (j) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
XIII shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. In no event shall the Conversion Price be less than
the par value of a share of the Company's Common Stock.
(k) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each conversion agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
showing in reasonable detail the facts upon which such adjustment is based,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities at such Holder's address as the same appears on the
registry books of the Registrar. Unless and until a Trust Officer has received
an Officers' Certificate setting forth an adjustment of the Conversion Price,
the Trustee may assume that no such adjustment has been made and that the last
Conversion Price for which the Trustee has received an Officers' Certificate is
the current Conversion Price. Neither the Trustee nor any Conversion Agent shall
be under any duty or responsibility with respect to any such Officer's
Certificate or the information and calculation contained therein, except to
exhibit the same to any Holder deserving inspection thereof, at its office
during normal business hours.
(l) In the event that the Company distributes rights or warrants (other
than those referred to in subsection (c) above) pro rata to holders of Common
--- ----
Stock, so long as any such rights or warrants have not expired or been redeemed
by the
83
Company, instead of making an adjustment in the Conversion Price, the Company
may make proper provision so that the Holder of any Note surrendered for conver-
sion will be entitled to receive upon such conversion, in addition to the shares
of Common Stock issuable upon such conversion (the "Conversion Shares"), a
number of rights or warrants to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of rights or
warrants of separate certificates evidencing such rights or warrants (the
"Distribution Date"), the same number of rights or warrants to which a holder of
a number of shares of Common Stock equal to the number of Conversion Shares is
entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the rights or warrants, and (ii) if such
conversion occurs after such Distribution Date, the same number of rights or
warrants to which a holder of the number of shares of Common Stock into which
the principal amount of such Note so converted was convertible immediately prior
to such Distribution Date would have been entitled on such Distribution Date in
accordance with the terms and provisions of and applicable to the rights or
warrants.
Section 13.5 Continuation of Conversion Privilege in Case of Reclassification,
-----------------------------------------------------------------
Change, Merger, Consolidation or Sale of Assets.
- -----------------------------------------------
If there shall occur: (a) any reclassification or change of
outstanding shares of Common Stock issuable upon conversion of the Securities
(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), (b)
any consolidation or merger of the Company with or into any other Person, or the
consolidation or merger of any other Person with or into the Company (other than
a merger which does not result in any reclassification, change, conversion,
exchange or cancellation of outstanding shares of Common Stock) or (c) any sale,
transfer or conveyance of all or substantially all of the assets of the Company
(computed on a consolidated basis), then the Company, or such successor or
purchasing entity, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then outstanding shall have the right to convert such Security
only into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale, transfer or conveyance by a holder of the number
of shares of Common Stock issuable upon conversion of such Security immediately
prior to such reclassification, change, consolidation, merger, sale, transfer or
conveyance assuming such holder of Common Stock of the Company failed to
exercise his rights of an election, if any, as to the kind or amount of
securities, cash and other property
84
receivable upon such reclassification, change, consolidation, merger, sale,
transfer or conveyance (provided that if the kind or amount of securities, cash,
--------
and other property receivable upon such reclassification, change, consolidation,
merger, sale, transfer or conveyance is not the same for each share of Common
Stock of the Company held immediately prior to such reclassification, change,
consolidation, merger, sale, transfer or conveyance in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section 13.6 the kind and amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, sale, transfer or conveyance by each non-electing share shall be deemed
to be the kind and amount so receivable per share by a plurality of the non-
electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article XIII. If, in the case of any such consolidation,
merger, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of shares of Common Stock
includes shares of stock or other securities and property (including cash) of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors of the Company shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 13.6 shall
similarly apply to successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at such Holder's address as the same appears
on the registry books of the Registrar.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or conveyance or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Article VIII hereof, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
Section 13.6 Notice of Certain Events.
------------------------
85
In case:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock (other than cash dividends);
(b) the Company shall authorize the granting to all or substantially all
the holders of Common Stock of rights, warrants or options to subscribe for or
purchase any shares of stock of any class or of any other rights;
(c) the Company shall authorize any reclassification or change of the
Common Stock (including a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company;
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(e) the Company or any of its Subsidiaries shall complete an Offer, as
defined in Section 13.5;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 13.2 hereof,
and shall cause to be mailed to each Holder of Securities, at such Holder's
address as it shall appear on the registry books of the Registrar, at least 10
days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a record is expected to be taken for the
purpose of such dividend, distribution, rights, warrants or options or Offer, or
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights, warrants or
options or to participate in such Offer are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up.
Section 13.7 Taxes on Conversion.
-------------------
86
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
-------- -------
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery has paid to the Company the amount of any such
tax or has established, to the satisfaction of the Company, that such tax has
been paid. The Company extends no protection with respect to any other taxes
imposed in connection with conversion of Securities.
Section 13.8 Company to Provide Stock.
------------------------
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of the Securities from time to time as such Securities are presented for
conversion, provided that nothing contained in this Section 13.9 shall be
--------
construed to preclude the Company from satisfying its obligations in respect of
the conversion of Securities by delivery of repurchased shares of Common Stock
which are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible use its reasonable efforts
to secure such registration or approval, as the case may be, provided, however,
-------- -------
that nothing in this Section 13.9 shall be deemed to limit in any way the
obligations of the Company provided in this Article XIII.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
87
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and non-
assessable by the Company and free of preemptive rights.
Section 13.9 Disclaimer of Responsibility for Certain Matters.
------------------------------------------------
Neither the Trustee nor any agent of the Trustee shall at any time be
under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the Officers' Certificate referred to in Section 13.5
hereof, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any agent of the Trustee shall be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any
securities or property (including cash), which may at any time be issued or
delivered upon the conversion of any Security; and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Neither the
Trustee nor any agent of the Trustee shall be responsible for any failure of the
Company to issue, register the transfer of or deliver any shares of Common Stock
or stock certificates or other securities or property (including cash) upon the
surrender of any Security for the purpose of conversion or, subject to Article
VIII hereof, to comply with any of the covenants of the Company contained in
this Article XIII.
Section 13.10 Return of Funds Deposited for Redemption of Converted Securities.
----------------------------------------------------------------
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article XIII, shall promptly after such conversion be repaid
to the Company by the Trustee or such other Paying Agent in accordance with the
Company's written instructions.
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 TIA Controls.
------------
88
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, whether or
not this Indenture has been qualified under the TIA, shall control. If any
provision of this Indenture modifies or excludes any provision of the TIA that
may be so modified or excluded, then the applicable TIA provision shall be
deemed to apply to this Indenture as so modified, or shall be excluded, as the
case may be.
Section 14.2 Notices.
-------
Any notices or other communications to the Company or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by recognized overnight courier, by telecopier
or registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503
Attention: Chief Financial Officer
Telephone: (310) 792-2600
Telecopy: (310) 792-0020
if to the Trustee:
The United States Trust Company of New York
114 West 47/th/ Street
New York, New York 10036
Attention: Corporate Trust and Agency Division
Telephone: (212) 852-1000
Telecopy: (212) 852-1626
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; the next Business Day after delivery to an overnight courier; and
five Business Days after mailing if sent by registered or certified mail,
postage prepaid
89
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is given in the manner provided above, it is duly
given, whether or not the addressee receives it except for notices and
communications to the Trustee which shall be effective only upon actual receipt
thereof.
Section 14.3 Communications by Holders with Other Holders.
--------------------------------------------
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA (S) 312(c).
Section 14.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to
take any action (other than the original issuance of the Securities pursuant to
this Indenture) under this Indenture, the Company shall furnish to the Trustee:
(1) An Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied or complied
with; and
(2) upon the Trustee's request, an Opinion of Counsel (in form
and substance reasonably satisfactory to the Trustee) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have
been satisfied or complied with.
Section 14.5 Statements Required in Certificate or Opinion.
---------------------------------------------
90
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with or satisfaction of with a condition or covenant provided for in
this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the exami-
nation or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied or complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been satisfied or complied
with; provided, however, that with respect to matters of fact an
-------- -------
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
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, and provided that any such certificate or opinion names the Trustee
as an addressee and is furnished to the Trustee at the time of delivery of such
certificate or opinion. 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 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. Opinions of Counsel required to be delivered to the
Trustee may have qualifications customary for opinions of the type required and
counsel delivering such Opinions of Counsel may rely on certificates of the
Company or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
91
Section 14.6. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
Section 14.7. Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday or any day that is not
a Business Day. If a payment date is a Legal Holiday at such place, payment may
be made at such place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 14.8. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
92
Section 14.9. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 14.10. No Recourse Against Others.
--------------------------
No direct or indirect partner, employee, shareholder, director or
officer, as such, past, present or future of the Company or any successor
corporation, shall have any personal liability in respect of the obligations of
the Company under the Securities or this Indenture (or for any claim based on,
or in respect of, or by reason of, such obligations or their creation) by reason
of his, her or its status as such partner, shareholder, employee, director or
officer. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
Section 14.11. Successors.
----------
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor and assigns.
Section 14.12. Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
Section 14.13. Severability.
------------
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 14.14. Table of Contents, Headings, Etc.
---------------------------------
93
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 14.15. Qualification of Indenture.
--------------------------
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs, fees and expenses (including attorneys' fees and
expenses for the Company and the Trustee) incurred in connection therewith,
including, but not limited to, costs, fees and expenses of qualification of the
Indenture and the Securities and printing this Indenture and the Securities.
The Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
Section 14.16. Benefits of Indenture.
---------------------
Nothing in this Indenture or the Securities, express or implied,
shall give to any Person other than the parties hereto, the holders of Senior
Indebtedness (subject to Article XII), the persons contemplated by Section 7.7
and the Holders, any benefits or any legal or equitable right, remedy or claim
under this Indenture or the Securities.
94
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
TOTAL RENAL CARE HOLDINGS, INC.,
a Delaware corporation
By: _____________________________________
Name:________________________________
Title:_______________________________
United States Trust Company of New York,
as Trustee
By: _____________________________________
Name:________________________________
Title:_______________________________
EXHIBIT A
---------
[FORM OF SECURITY]
TOTAL RENAL CARE HOLDINGS, INC.
7% CONVERTIBLE SUBORDINATED NOTES DUE 2009
No. CUSIP No. ______
$
TOTAL RENAL CARE HOLDINGS, INC., a Delaware corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________, or registered assigns, the principal sum of _________ Dollars, on
May 15, 2009.
Interest Payment Dates: May 15, and November 15; commencing May 15,
1999.
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
TOTAL RENAL CARE HOLDINGS, INC., a Dela-
ware corporation
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Certificate of Authentication:
This is one of the Notes described in the within-mentioned Indenture.
Dated:_____________
United States Trust Company of New York, as Trustee
By:_______________________________________________
Authorized Signatory
A-3
TOTAL RENAL CARE HOLDINGS, INC.
7% Convertible Subordinated Notes due 2009
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("Depositary"), to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of the Depository to
the Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of the Depositary (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein./1/
_____________________
/1/ This paragraph should only be added if the Note is issued in global form.
A-4
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET
FORTH IN THE NEXT SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT EITHER (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN
"IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (C) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (A FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE), (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING./2/
1. Interest.
--------
______________________
/2/ This paragraph should be included only for Transfer Restricted Securities.
A-5
Total Renal Care Holdings, Inc., a Delaware corporation (hereinafter called
the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Note at the rate of 7% per annum. To the extent it is lawful, the Company
promises to pay interest on any interest payment due but unpaid on such
principal amount at a rate of 7% per annum compounded semi-annually.
The Company will pay interest semi-annually in cash in arrears on May 15 and
November 15 of each year (each, an "Interest Payment Date"), commencing May 15,
1999. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Notes, from
November 18, 1998. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date. Any such interest
not so punctually paid, and defaulted interest relating thereto, may be paid
to the Persons who are registered Holders at the close of business on a Special
Record Date for the payment of such defaulted interest, as more fully provided
in the Indenture referred to below. Holders must surrender Notes to a Paying
Agent to collect principal payments. Except as provided below, the Company shall
pay principal and interest in such coin or currency of the United States of
America as at the time of payment shall be legal tender for payment of public
and private debts ("U.S. Legal Tender"). The Notes will be payable as to
principal, premium, interest and Liquidated Damages at the office or agency of
the Company maintained for such purpose within or without New York, New York, or
at the option of the Company, payment of principal, premium, interest and
Liquidated Damages may be made by check mailed to the Holders at their addresses
set forth in the registry of Holders, and provided that, upon the request of The
Depository Trust Company, a New York corporation (the "Depositary"), payment
by wire transfer to an account within the United States of immediately
available funds will be required with respect to principal of, premium and
interest on and Liquidated Damages with respect to Global Notes and all other
Notes held of record by the Depositary, or its nominee, if the Depositary shall
have provided wire transfer instructions to the Company or the Paying Agent.
3. Paying Agent and Registrar.
--------------------------
A-6
Initially, United States Trust Company of New York (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
---------
The Company issued the Notes under an Indenture, dated as of November 18,
1998 (as amended or supplemented from time to time the "Indenture"), between the
Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act, as in effect on the date of the Indenture. The Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and said Act for a statement of them. The Notes are general unsecured
obligations of the Company limited in aggregate principal amount to
$345,000,000.
5. Redemption.
----------
The Notes may be redeemed in whole or from time to time in part at any time
on and after November 15, 2001, at the option of the Company, at the Redemption
Price (expressed as a percentage of principal amount) set forth below with
respect to the indicated Redemption Date, in each case, plus any accrued but
unpaid interest and Liquidated Damages to, but excluding the Redemption Date.
The Notes may not be so redeemed prior to November 15, 2001.
If redeemed during
the 12-month period
beginning on November 15 Redemption Price
------------------------ ----------------
2001.................................... 104.90%
2002.................................... 104.20%
2003.................................... 103.50%
2004.................................... 102.80%
2005.................................... 102.10%
2006.................................... 101.40%
2007.................................... 100.70%
2008 and thereafter..................... 100.00%
Any such redemption will comply with Article III of the Indenture.
A-7
6. Notice of Redemption.
--------------------
Notice of redemption will be sent by first class mail, at least 30 days and
not more than 60 days prior to the Redemption Date to the Holder of each Note to
be redeemed at such Holder's last address as then shown upon the registry books
of the Registrar. Notes may be redeemed in part in integral multiples of
$1,000 only.
Except as set forth in the Indenture, from and after any Redemption Date, if
monies for the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent on such Redemption Date and payment of the Notes
called for redemption is not prohibited under Article XII of the Indenture, the
Notes called for redemption will cease to bear interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price,
plus any accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date.
7. Denominations; Transfer; Exchange.
---------------------------------
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with, the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Notes
selected for redemption.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Note may be treated as the owner of it for all
purposes, subject to the provisions of the Indenture and the Notes with respect
to record dates.
9. Unclaimed Money.
---------------
If money for the payment of principal, interest or Liquidated Damages
remains unclaimed for one year, the Trustee and the Paying Agent(s) will pay the
money back to the Company at its written request. After that, all liability of
the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Amendment; Supplement; Waiver.
-----------------------------
A-8
Subject to specified exceptions, the Indenture or the Notes may be amended
or supplemented, and any existing Default or Event of Default or compliance with
any provision may be waived, with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency, or make any other change that does not materially adversely
affect the rights of any Holder of a Note.
11. Conversion Rights.
-----------------
Subject to the provisions of the Indenture, the Holders have the right to
convert the principal amount of the Notes into fully paid and nonassessable
shares of Common Stock of the Company at an office or agency maintained for such
purpose as provided in the Indenture at the initial conversion price per share
of Common Stock of $32.81 (which reflects a conversion rate of approximately
30.4785 shares of Common Stock per $1,000 in principal amount of Notes), or at
the adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Note to the Company, together
with a fully executed notice in substantially the form attached hereto and, if
required by the Indenture, an amount equal to accrued interest payable on such
Note.
12. Ranking.
-------
Payment of principal, premium, if any, interest on and Liquidated Damages
and other amounts with respect to the Notes is subordinated, in the manner and
to the extent set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness.
13. Repurchase at Option of Holder Upon a Change of Control.
-------------------------------------------------------
If there is a Change of Control, the Company shall, subject to certain
exceptions, be required, subject to the provisions of the Indenture, to offer to
purchase on the Repurchase Date all outstanding Notes at a purchase price equal
to 100% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding, the Repurchase Date. Holders of
Notes will receive a Repurchase Offer from the Company prior to any related
Repurchase Date and may elect to have such Notes purchased by completing the
form entitled "Option of Holder to Elect Purchase" appearing below.
A-9
14. Successors.
----------
When a successor assumes all the obligations of its predecessor under the
Notes and the Indenture, the predecessor will be released from those
obligations.
15. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing (other than an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization),
then in every such case, unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of 25% in
aggregate principal amount of Notes then outstanding may declare all the Notes
to be due and payable immediately in the manner and with the effect provided in
the Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal, interest
or Liquidated Damages), if it determines that withholding notice is in their
interest.
16. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
17. No Recourse Against Others.
--------------------------
No direct or indirect partner, shareholder, director, officer or employee,
as such, past, present or future, of the Company or any successor corporation
shall have any personal liability in respect of the obligations of the Company
under the Notes or the Indenture, or for any claim based on, in respect of, or
by reason of, such obligations or their creation, by reason of his, her or its
status as such partner, shareholder, director, officer or employee. Each Holder
of a Note by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
A-10
18. Authentication.
--------------
This Note shall not be valid until the Trustee or authenticating agent signs
the certificate of authentication on this Note.
19. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a Note 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).
20. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY
OTHER JURISDICTION.
21. CUSIP Numbers.
-------------
A-11
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
22. Additional Rights of Holders of Transfer Restricted Notes.
---------------------------------------------------------
In addition to the rights provided to Holders of Notes under the Indenture,
Holders of Notes shall have all the rights set forth in the Registration Rights
Agreement.
23. Copies of Agreements.
--------------------
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Request may be made to:
Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503
Attention: Secretary
A-12
FORM OF ASSIGNMENT
I or we assign this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Note or other identifying number of assignee
and irrevocably appoint __________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
Dated:________________ Signed:_________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guaranty:_____________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guaranty program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Article XI of the Indenture, check the box: [_]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Article XI of the Indenture, state the amount you want to be
purchased:
$________________
Dated:________________ Signed:______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guaranty:__________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Note Transfer Agent Medallion Program ("STAMP") or such
other "signature guaranty program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-14
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES/3/
The following exchanges of a part of this Global Note for Definitive Notes
have been made:
Principal Amount
Amount of de- Amount of in of this Global Signature of au-
crease in Principal crease in Principal Note following thorized signatory
Date of Amount of this Amount of this such decrease (or of Trustee or
Exchange Global Note Global Note increase) Notes Custodian
- -----------------------------------------------------------------------------------------------
_________________
/3/ This schedule should only be added if the Note is issued in global form.
A-15
EXHIBIT B
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES/4/
Re: 7% CONVERTIBLE SUBORDINATED NOTES DUE 2009 OF TOTAL RENAL CARE HOLDINGS,
INC.
This Certificate relates to $__________ principal amount of Notes held in
__________ book-entry or ____________ definitive form by
____________________________ (the "Transferor").
1. The Transferor (check applicable box):
-------------------------------------
[_] (a) has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
[_] (b) has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
2. In connection with any such request and in respect of each such Note,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Notes and as provided in Section 2.6
of such Indenture, the transfer of this Note does not require registration under
the Securities Act because (check applicable box):
[_] (a) Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of
the Indenture).
[_] (b) Such Note is being transferred to a person who the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) purchasing for its own account or for the account
of a qualified institutional buyer over which it exercises sole investment
discretion that is aware that the transfer is being
________________
/4/ This Certificate shall be included only for the Transfer Restricted Notes.
B-1
made in reliance on Rule 144A (in satisfaction of Section 2.6(a)(ii)(B),
Section 2.6(b)(i)(x) or Section 2.6(d)(i)(B) of the Indenture).
[_] (c) Such Note is being transferred to an institutional investor that is an
"accredited investor" within the meaning of Rule 501(a)(1),(2),(3) or (7) under
the Securities Act which delivers a certificate in the form of Exhibit B to the
Indenture to the Trustee (in satisfaction of Section 2.6(a)(ii)(C) or Section
2.6(d)(i)(C) of the Indenture), and delivers an opinion of counsel, if the
Company or the Trustee so requests.
[_] (d) Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities Act. If
requested by either the Company, an Opinion of Counsel to the effect that such
transfer does not require registration under the Securities Act accompanies this
Certificate (in satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of
the Indenture).
__________________________________________
[INSERT NAME OF TRANSFEROR]
By:_______________________________________
Date:_________
B-2
3. Affiliation with the Company [check if applicable]:
[_] (a) The undersigned represents and warrants that it is, or at some time
during which it held this Note was, an Affiliate of the Company.
[_] (b) If 3(a) above is checked and if the undersigned was not an Affiliate
of the Company at all times during which it held this Note, indicate the periods
during which the undersigned was an Affiliate of the Company:
[_] (c) If 3(a) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Note on or prior to the date of
transfer indicate when such purchase price will be paid:
B-3
TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS NOT
A QUALIFIED INSTITUTIONAL BUYER:/5/
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information.
Dated:________ _____________________________________________
NOTICE: To be executed by an officer.
_____________________
/5/ This Certificate shall be included only for the Transfer Restricted Notes.
B-4
EXHIBIT C
---------
FORM OF CONVERSION NOTICE
-------------------------
TO: TOTAL RENAL CARE HOLDINGS, INC.
The undersigned owner of this Note hereby: (i) irrevocably exercises the
option to convert this Note, or the portion hereof below designated, for shares
of Common Stock of Total Renal Care Holdings, Inc. in accordance with the terms
of this Indenture referred to in this Security and (ii) directs that such shares
of Common Stock deliverable upon the conversion, together with any check in
payment for fractional shares and any Note(s) representing any unconverted
principal amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. The under signed
acknowledges that if such shares of Common Stock have not yet been registered
with the Securities and Exchange Commission, such shares may be required to bear
a restrictive legend. If shares are to be delivered registered in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto and deliver the Certificate to be delivered upon
Exchange or Registration of Transfer of Notes. Any amount required to be paid
by the undersigned on account of interest accompanies this Note.
Dated:__________
____________________________________________________
Signature
Fill in for registration of shares if to be delivered, and of Notes if to be
issued, otherwise than to and in the name of the registered holder.
____________________________________________________
Social Security or other Taxpayer Identifying Number
C-1
(Name)
(Street Address)
City, State and Zip Code)
(Please print name and address)
Principal amount to be converted (if less than
all)
$_______________________________________________
C-2