CALENERGY COMPANY, INC.,
As Issuer
TO
THE BANK OF NEW YORK,
As Trustee
----------------
Indenture
Dated as of April 1, 1996
----------------
$103,092,800
(subject to increase to up to $115,463,950 in
the event an over-allotment option is exercised)
6 1/4% Convertible Junior Subordinated
Deferrable Interest Debentures Due 2016
CalEnergy Company, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
ss.310(a)(1) .................................................... 609
(a)(2) .................................................... 609
(a)(3) .................................................... Not Applicable
(a)(4) .................................................... Not Applicable
(b) .................................................... 608, 610
ss. 311(a) .................................................... 613
(b) .................................................... 613
ss. 312(a) .................................................... 701
.................................................... 702(a)
(b) .................................................... 702(b)
(c) .................................................... 702(c)
ss. 313(a) .................................................... 703(a)
(a)(4) .................................................... 101, 1004
(b) .................................................... 703(a)
(c) .................................................... 703(a)
(d) .................................................... 703(b)
ss. 314(a) .................................................... 704
(b) .................................................... Not Applicable
(c)(1) .................................................... 102
(c)(2) .................................................... 102
(c)(3) .................................................... Not Applicable
(d) .................................................... Not Applicable
(e) .................................................... 102
ss. 315(a) .................................................... 601
(b) .................................................... 602
(c) .................................................... 601
(d) .................................................... 601
(e) .................................................... 514
ss. 316(a) .................................................... 101
(a)(1)(A) .................................................... 502
.................................................... 512
(a)(1)(B) .................................................... 513
(a)(2) .................................................... Not Applicable
(b) .................................................... 508
(c) .................................................... 104(c)
ss. 317(a)(1) .................................................... 503
(a)(2) .................................................... 504
(b) .................................................... 1003
ss. 318(a) .................................................... 107
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
TABLE OF CONTENTS
Page
Parties................................................................................................ 1
Recitals of the Company................................................................................ 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions................................................................. 2
Act ........................................................................ 3
Additional Interest......................................................... 3
Additional Payments......................................................... 3
Affiliate................................................................... 3
Agent ................................................................... 3
Board of Directors.......................................................... 3
Board Resolution............................................................ 3
Business Day................................................................ 3
Closing Price............................................................... 4
Commission.................................................................. 4
Common Securities........................................................... 4
Common Stock................................................................ 4
Company ................................................................... 4
Company Request............................................................. 4
Compounded Interest......................................................... 5
Conversion Agent............................................................ 5
Conversion Date............................................................. 5
Corporate Trust Office...................................................... 5
Declaration................................................................. 5
Defaulted Interest.......................................................... 5
Delaware Trustee............................................................ 5
Dissolution Tax Opinion..................................................... 5
Event of Default............................................................ 5
Extended Interest Payment Period............................................ 5
Guarantee................................................................... 6
Holder ................................................................... 6
Indenture................................................................... 6
Initial Purchasers.......................................................... 6
Interest Payment Date....................................................... 6
Investment Company Event.................................................... 6
Maturity ................................................................... 6
Ministerial Action.......................................................... 6
90 Day Period............................................................... 6
No Recognition Opinion...................................................... 6
Notice of Conversion........................................................ 6
Officer's Certificate....................................................... 7
Opinion of Counsel.......................................................... 7
Outstanding................................................................. 7
Paying Agent................................................................ 8
Person ................................................................... 8
Predecessor Security........................................................ 8
Preferred Securities........................................................ 8
iii
Property Trustee............................................................ 8
Purchase Agreement.......................................................... 8
Redemption Date............................................................. 8
Redemption Price............................................................ 8
Redemption Tax Opinion...................................................... 8
Reference Date.............................................................. 8
Registration Default........................................................ 8
Registration Rights Agreement............................................... 8
Regular Record Date......................................................... 8
Responsible Officer......................................................... 8
Restricted Securities Legend................................................ 9
Securities.................................................................. 9
Security Register........................................................... 9
Senior Indebtedness......................................................... 9
Shelf Registration Statement................................................ 10
Special Event............................................................... 10
Special Record Date......................................................... 10
Stated Maturity............................................................. 10
Subsidiary.................................................................. 10
Tax Event................................................................... 10
Trading Day................................................................. 10
Trust ................................................................... 10
Trustee ................................................................... 10
Trust Indenture Act......................................................... 10
Trust Securities............................................................ 11
Vice President.............................................................. 11
Voting Stock................................................................ 11
SECTION 102. Compliance Certificates and Opinions........................................ 11
SECTION 103. Form of Documents Delivered to Trustee...................................... 12
SECTION 104. Acts of Holders; Record Dates............................................... 12
SECTION 105. Notices, Etc., to Trustee and the Company................................... 14
SECTION 106. Notice to Holders; Waiver................................................... 15
SECTION 107. Conflict with Trust Indenture Act........................................... 15
SECTION 108. Effect of Headings and Table of Contents.................................... 16
SECTION 109. Successors and Assigns...................................................... 16
SECTION 110. Separability Clause......................................................... 16
SECTION 111. Benefits of Indenture....................................................... 16
SECTION 112. Governing Law............................................................... 16
SECTION 113. Legal Holidays.............................................................. 16
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally............................................................. 17
SECTION 202. Initial Issuance to Property Trustee........................................ 17
ARTICLE THREE
The Securities
SECTION 301. Title and Terms............................................................. 18
SECTION 302. Denominations............................................................... 20
SECTION 303. Execution, Authentication, Delivery and Dating.............................. 20
SECTION 304. Temporary Securities........................................................ 21
iv
SECTION 305. Registration, Registration of Transfer and
Exchange.................................................................... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............................ 23
SECTION 307. Payment of Interest; Interest Rights Preserved.............................. 24
SECTION 308. Persons Deemed Owners....................................................... 26
SECTION 309. Cancellation................................................................ 26
SECTION 310. Right of Set Off............................................................ 26
SECTION 311. CUSIP Numbers............................................................... 26
SECTION 312. Extension of Interest Payment Period; Notice of
Extension................................................................... 27
SECTION 313. Paying Agent, Security Registrar and Conversion Agent....................... 28
SECTION 314. Global Security............................................................. 28
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture..................................... 30
SECTION 402. Application of Trust Money.................................................. 31
ARTICLE FIVE
Remedies
SECTION 501. Events of Default........................................................... 32
SECTION 502. Acceleration of Maturity; Rescission and
Annulment................................................................... 34
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................................... 35
SECTION 504. Trustee May File Proofs of Claim............................................ 35
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.................................................................. 36
SECTION 506. Application of Money Collected.............................................. 36
SECTION 507. Limitation on Suits......................................................... 37
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest and Convert.......................................... 38
SECTION 509. Restoration of Rights and Remedies.......................................... 38
SECTION 510. Rights and Remedies Cumulative.............................................. 38
SECTION 511. Delay or Omission Not Waiver................................................ 38
SECTION 512. Control by Holders.......................................................... 39
SECTION 513. Waiver of Past Defaults..................................................... 39
SECTION 514. Undertaking for Costs....................................................... 40
SECTION 515. Waiver of Stay or Extension Laws............................................ 40
SECTION 516. Enforcement by Holders of Preferred Securities.............................. 40
ARTICLE SIX
The Trustee
SECTION 601 Certain Duties and Responsibilities......................................... 41
SECTION 602. Notice of Defaults.......................................................... 41
SECTION 603. Certain Rights of Trustee................................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.................................................................. 43
SECTION 605. May Hold Securities......................................................... 43
SECTION 606. Money Held in Trust......................................................... 43
v
SECTION 607. Compensation and Reimbursement.............................................. 43
SECTION 608. Disqualification; Conflicting Interests..................................... 44
SECTION 609. Corporate Trustee Required; Eligibility..................................... 44
SECTION 610. Resignation and Removal; Appointment of Successor........................... 45
SECTION 611. Acceptance of Appointment by Successor...................................... 46
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business................................................................. 47
SECTION 613. Preferential Collection of Claims Against
Company..................................................................... 47
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders................... 47
SECTION 702. Preservation of Information; Communications to Holders...................... 48
SECTION 703. Reports by Trustee.......................................................... 48
SECTION 704. Reports by Company.......................................................... 49
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease........................ 49
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms....................................................................... 49
SECTION 802. Successor Substituted....................................................... 50
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.......................... 51
SECTION 902. Supplemental Indentures with Consent of Holders............................. 52
SECTION 903. Execution of Supplemental Indentures........................................ 53
SECTION 904. Effect of Supplemental Indentures........................................... 53
SECTION 905. Conformity with Trust Indenture Act......................................... 54
SECTION 906. Reference in Securities to Supplemental Indentures......................... 54
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest........................................... 54
SECTION 1002. Maintenance of Office or Agency............................................. 54
SECTION 1003. Money for Security Payments to Be Held in Trust............................. 55
SECTION 1004. Statement by Officers as to Default......................................... 56
SECTION 1005. Limitation on Dividends; Covenants as to the Trust.......................... 56
SECTION 1006. Payment of Expenses of the Trust............................................ 57
SECTION 1007. Registration Rights......................................................... 58
ARTICLE ELEVEN
Redemption of Securities
vi
SECTION 1101. Right of Redemption......................................................... 60
SECTION 1102. Applicability of Article.................................................... 60
SECTION 1103. Election to Redeem; Notice to Trustee....................................... 60
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed.................................................................... 61
SECTION 1105. Notice of Redemption........................................................ 61
SECTION 1106. Deposit of Redemption Price................................................. 62
SECTION 1107. Securities Payable on Redemption Date....................................... 62
SECTION 1108. Securities Redeemed in Part................................................. 63
SECTION 1109. Optional Redemption......................................................... 63
SECTION 1110. Tax Event Redemption........................................................ 64
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Agreement to Subordinate.................................................... 65
SECTION 1202. Default on Senior Indebtedness.............................................. 65
SECTION 1203. Liquidation; Dissolution; Bankruptcy........................................ 66
SECTION 1204. Subrogation................................................................. 67
SECTION 1205. Trustee to Effectuate Subordination......................................... 69
SECTION 1206. Notice by the Company....................................................... 69
SECTION 1207. Rights of the Trustee; Holders of Senior Indebt
edness...................................................................... 70
SECTION 1208. Subordination May Not Be Impaired........................................... 71
ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. Conversion Rights........................................................... 71
SECTION 1302. Conversion Procedures....................................................... 72
SECTION 1303. Conversion Price Adjustments................................................ 74
SECTION 1304. Reclassification, Consolidation, Merger or Sale
of Assets................................................................... 78
SECTION 1305. Notice of Adjustments of Conversion Price................................... 78
SECTION 1306. Prior Notice of Certain Events.............................................. 79
SECTION 1307. Certain Defined Terms....................................................... 80
SECTION 1308. Dividend or Interest Reinvestment Plans..................................... 81
SECTION 1309. Certain Additional Rights................................................... 81
SECTION 1310. Restrictions on Common Stock Issuable Upon Con
version..................................................................... 82
SECTION 1311. Trustee Not Responsible for Determining Conver
sion Price or Adjustments................................................... 83
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 1401. No Recourse............................................................................ 83
EXHIBIT A Form of the Security
Page
ANNEX I Form of Amended and Restated Declaration of Trust among the
Company, as Sponsor, The Bank of New York, The Bank Of New York
(Delaware), and Steven A. McArthur, John G. Sylvia and Gregory Abel,
as trust ees, dated as of April 4, 1996.
- --------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
viii
INDENTURE, dated as of April 1, 1996, between CalEnergy
Company, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 302 South 36th Street, Suite 400, Omaha, Nebraska 68131, and The Bank of
New York, a New York banking corporation, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, CalEnergy Capital Trust, a Delaware business trust
(the "Trust"), formed under the Amended and Restated Declaration of Trust
among the Company, as Sponsor, The Bank of New York, as property trustee (the
"Property Trustee") and The Bank of New York (Delaware) (the "Delaware
Trustee") and Steven A. McArthur, John G. Sylvia and Gregory Abel, as
trustees, dated as of April 4, 1996 (the "Declara tion"), pursuant to the
Purchase Agreement (the "Purchase Agreement") dated April 4, 1996, among the
Company, the Trust and the Initial Pur chasers named therein, will issue and
sell up to 2,000,000 (or 2,240,000 if the over-allotment option is exercised)
aggregate liquidation prefer ence of its 6 1/4% Convertible Preferred
Securities (the "Preferred Securi ties") with a liquidation preference of $50
per Preferred Security, having an aggregate liquidation amount with respect to
the assets of the Trust of $100,000,000.00 (or $112,000,000.00 if the
over-allotment option is exercised);
WHEREAS, the trustees of the Trust, on behalf of the Trust,
will execute and deliver to the Company Common Securities evidencing an
ownership interest in the Trust, registered in the name of the Company, in an
aggregate amount equal to three percent of the capitalization of the Trust,
equivalent to 61,856 Common Securities (or 69,279 Common Securities if the
over-allotment option is exercised), with a liquida tion preference of $50 per
Common Security, having an aggregate liquida tion amount with respect to the
assets of the Trust of $3,092,800.00 (or $3,463,950.00 if the over-allotment
option is exercised) (the "Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of
the Preferred Securities and the Common Securities to purchase from the
Company Securities (as defined below) in an aggregate principal amount of
$103,092,800.00 (or $115,463,950.00 if the over-allotment option is
exercised);
WHEREAS, the Company is guaranteeing the payment of
distributions on the Preferred Securities, and payment of the Redemption Price
and payments on liquidation with respect to the Preferred Securities, to the
extent provided in the Preferred Securities Guarantee Agreement (the
"Guarantee") between the Company and The Bank of New York, as guarantee
trustee, for the benefit of the holders of the Pre ferred Securities from time
to time;
WHEREAS, the Company has duly authorized the creation of an
issue of its 6 1/4% Convertible Junior Subordinated Deferrable Interest
Debentures Due 2016 (the "Securities"), of substantially the tenor and amount
hereinafter set forth and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture; and
WHEREAS, so long as the Trust is a Holder of Securities, and
any Preferred Securities are outstanding, the Declaration provides that
the holders of Preferred Securities may cause the Conversion Agent to (a)
exchange such Preferred Securities for Securities held by the Trust and (b)
immediately convert such Securities into Common Stock;
WHEREAS, all things necessary to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning specified in Section
301.
"Additional Payments" means Compounded Interest and
Additional Interest, if any.
2
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent
or co-registrar.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or a
Sunday or a day on which banking institutions in The City of New York are
authorized or required by any applicable law or executive order to remain
closed.
"Closing Price" has the meaning specified in Section 1307.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the
recitals to this Instrument.
"Common Securities Guarantee" means any guarantee that the
Company may enter into for the benefit of holders of Common Securities of the
Trust.
"Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to redemption by the
Company. However, subject to the provisions of Article Thirteen, shares
issuable on conversion of Securities shall include only shares of the class
designated as Common Stock of the Company at the date of this instrument or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which are not
subject to redemption by the Company; provided, that if at any time there
shall be more than one such resulting class, the shares of each such class
then so issuable on conversion shall be substantially in the proportion which
the total
3
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, a Vice President, its Treasurer or
its Secretary, and delivered to the Trustee.
"Compounded Interest" has the meaning specified in Section
312.
"Conversion Agent" means the Person appointed to act on
behalf of the holders of Preferred Securities in effecting the conversion of
Preferred Securities as and in the manner set forth in the Declaration and
Section 1302 hereof.
"Conversion Date" has the meaning specified in Section 1302.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York, at which at any particular time its corporate
trust business shall be administered and which at the date of this Indenture
is 101 Barclay Street, Floor 21 West, New York, New York
10286.
"Declaration" has the meaning specified in the Recitals of
this instrument.
"Defaulted Interest" has the meaning specified in Section
307.
"Delaware Trustee" has the meaning given it in the Recitals
of this instrument.
"Depositary" means, with respect to any Securities issued in
the form of one or more Global Security, a clearing agency registered under
the Exchange Act that is dedicated to act as Depositary for the Securities.
"Dissolution Event" means that, as a result of the
occurrence and continuation of a Special Event, the Trust is to be dissolved
in accordance with the Declaration and the Debentures held by the Property
Trustee are to be distributed to the holders of Trust Securities issued by The
Trust pro rata in accordance with the Declaration.
"Dissolution Tax Opinion" has the meaning specified in the
Declaration.
"Event of Default" has the meaning specified in Section 501.
4
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Extended Interest Payment Period" has the meaning specified
in Section 312.
"Global Security" has the meaning specified in Section 314.
"Guarantee" has the meaning specified in the Recitals to
this instrument.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.
"Initial Purchasers," with respect to the Preferred
Securities, means CS First Boston Corporation and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
"Interest Payment Date" has the meaning specified in Section
301.
"Investment Company Event" has the meaning specified in the
Declaration.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Ministerial Action" has the meaning specified in Section
1110.
"90 Day Period" has the meaning specified in Section 1110.
"No Recognition Opinion" has the meaning specified in the
Declaration.
"non Book-Entry Preferred Securities" has the meaning
specified in Section 314.
"Notice of Conversion" means the notice to be given by a
holder of Preferred Securities to the Conversion Agent directing the
Conversion Agent to exchange such Preferred Securities for Securities and to
convert such Securities into Common Stock on behalf of such holder.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a
5
Vice President, the Treasurer or the Secretary of the Company and delivered to
the Trustee. The officer signing an Officer's Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except: (i) Securities theretofore cancelled
by the Trustee or delivered to the Trustee for cancellation; (ii) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and (iii) Securities which
have been paid pursuant to Section 306, converted into Common Stock pursuant
to Section 1301, or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, company,
partnership, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under
6
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the
Recitals to this instrument.
"Property Trustee" has the meaning specified in the Recitals
of this instrument.
"Purchase Agreement" has the meaning specified in the
Recitals to this instrument.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Redemption Tax Opinion" has the meaning set forth in the
Declaration.
"Reference Date" has the meaning specified in Section
1303(c).
"Registration Default" has the meaning specified in Section
1007.
"Registration Rights Agreement" has the meaning specified in
Section 1007.
"Regular Record Date" has the meaning specified in Section
301.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Securities Legend" has the meaning specified in
Section 202.
"Securities" has the meaning specified in the Recitals to
this instrument.
7
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means in respect of the Company (i)
the principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii)
all capital lease obligations of such obligor, (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such obligor and all obligations of such
obligor under any title reten tion agreement (but excluding trade accounts
payable arising in the ordinary course of business), (iv) all obligations of
such obligor for the reimbursement of any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction, (v) all
obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise, and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by any lien on
any property or asset of such obligor (whether or not such obligation is
assumed by such obligor), except for (1) any such indebtedness issued after
the date of original issuance of the Securities that is by its terms
subordinated to or pari passu with the Securities and (2) any indebtedness
(including all other debt securities and guarantees in respect of those debt
securities) initially issued to any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities
or other securities which by their terms rank pari passu with, or junior to,
the Preferred Securities.
"Shelf Registration Statement" has the meaning specified in
Section 1007.
"Special Event" has the meaning specified in the
Declaration.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal, together with any accrued and unpaid
interest (including Compounded Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other
than a corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power to direct
the policies, management and affairs thereof.
8
"Tax Event" has the meaning specified in the Declaration.
"Trading Day" has the meaning specified in Section 1307.
"Trust" has the meaning specified in the Recitals to this
instrument.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred
Securities.
"Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means capital stock of such
Person which ordinarily has voting power for the election of directors
(or Persons performing similar functions) of such Person, whether at all times
or only so long as no senior class of securities has such voting power by
reason of any contingency.
Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act or reasonably requested by the Trustee in
connection with such application or request. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the applicable requirements of the Trust Indenture Act
and any other applicable requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
9
(2) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of
each such individual, he has made or caused to be made such
examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the
opinion of each such individual, such condition or covenant
has been complied with.
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
10
Section 104 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee or the Company, as
the case may be, deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or per mitted to be given
or taken by Holders. If not set by the Company prior to the first solicitation
of a Holder made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direc tion referred to
in Section 512. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain
11
Holders after such record date; Nothing in this paragraph shall be con strued
to prevent the Trustee from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the date such action is taken.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount, in each case, by specifying the same in a written notice to
the Company.
Section 105 Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee by the Company.
12
Section 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at such Holder's address as it appears in
the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner
shall be conclusively deemed to have been received by such Holder whether or
not actually received by such Holder. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
Section 110 Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
13
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness, the holders of
Preferred Securities (to the extent provided herein) and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security or the last date on which a Holder has the
right to convert his Securities shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or conversion of the Securities need not be
made on such date, but may be made on the next succeeding Business Day (except
that, if such Business Day is in the next succeeding calendar year, such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
shall be the immediately preceding Business Day) with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or on such last day for conversion, provided, that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201 Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be substantially in the form of Exhibit A which is hereby
incorporated in and expressly made a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Company). The Company shall furnish any such legend not contained in Exhibit A
to the Trustee in writing. Each Security shall be dated the date of its
authentication. The terms and provisions of the Securities set forth in
Exhibit A are part of the terms of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
14
The definitive Securities shall be typewritten or printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202 Initial Issuance to Property Trustee.
The Securities initially issued to the Property Trustee of
the Trust shall be in the form of one or more individual certificates in
definitive, fully registered form without distribution coupons and shall bear
the following legend (the "Restricted Securities Legend") unless the Company
determines otherwise in accordance with applicable law:
THIS SECURITY HAS AND ANY COMMON STOCK (AND RELATED RIGHTS)
ISSUED ON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT.
15
ARTICLE THREE
The Securities
Section 301 Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is limited to the sum of (a)
$103,092,800.00 and (b) such aggregate principal amount (which may not exceed
$12,371,150.00 aggregate principal amount) of Securities, if any, as shall be
purchased by the Trust pursuant to an over-allotment option in accordance with
the terms and provisions of the Purchase Agreement dated April 4, 1996, among
the Company, the Trust and the Initial Purchasers named therein, except for
Securities authenticated and delivered upon registration of, transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 304, 305,
306, 906, 1108 or 1301.
The Securities shall be known and designated as the "6 1/4%
Convertible Junior Subordinated Deferrable Interest Debentures Due 2016" of
the Company. Their Stated Maturity shall be March 10, 2016, and they shall
bear interest at the rate of 6 1/4% per annum, from April 10, 1996 or from the
most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, as the case may be, payable quarterly (subject
to deferral as set forth herein), in arrears, on March 15, June 15, September
15 and December 15 (each an "Interest Payment Date") of each year, commencing
June 15, 1996 until the prin cipal thereof is paid or made available for
payment, and they shall be paid to the Person in whose name the Security is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the date which
is 15 days prior to each Interest Payment Date (the "Regular Record Date").
Interest will compound quarterly and will accrue at the rate of 6 1/4% per
annum on any interest installment in arrears for more than one quarter or
during an extension of an interest payment period as set forth in Section 312
hereof.
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest in computed,
will be computed on the basis of the actual number of days elapsed in such a
30-day month. In the event that any date on which interest is payable on the
Securities is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
If at any time while the Property Trustee is the Holder of
any Securities, the Trust or the Property Trustee is required to pay any
taxes, duties assessments or governmental charges of whatever nature
16
(other than withholding, transfer or stamp taxes) imposed by the United
States, or any other taxing authority, then, in any case, the Company will pay
as additional interest ("Additional Interest") on the Securi ties held by the
Property Trustee, such additional amounts as shall be required so that the net
amounts received and retained by the Trust and the Property Trustee after
paying such taxes, duties assessments or other governmental charges will be
equal to the amounts the Trust and the Property Trustee would have received
had no such taxes, duties, assessments or other government charges been
imposed.
The principal of and interest on the Securities shall be
payable at the office or agency of the Company in the United States maintained
for such purpose and at any other office or agency maintained by the Company
for such purpose in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article
Eleven hereof.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Twelve hereof.
The Securities shall be convertible as provided in Article
Thirteen hereof.
Section 302 Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $50 and integral multiples
thereof.
Section 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate
17
and make available for delivery such Securities as in this Indenture
provided and not otherwise.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the offi cers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until
so exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
Section 305 Registration, Registration of Transfer and
Exchange.
(a) General.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated
18
transferee or transferees, one or more new Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1108 or 1301
not involving any transfer.
The Company shall not be required (i) in the case of a
partial redemption of the Securities, to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
(b) Transfer Procedures and Restrictions.
The Securities may not be transferred except in compliance
with the Restricted Securities Legend unless otherwise determined by the
Company in accordance with applicable law. Upon any distribution of the
Securities to the holders of the Preferred Securities in accordance with the
Declaration, the Company and the Trustee shall enter into a supplemental
indenture pursuant to Section 901(6) to provide for transfer procedures and
restrictions with respect to the Securities substantially similar to those
contained in the Declaration to the extent applicable in the circumstances
existing at the time of such distribution.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
19
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
20
(1) The Company may elect to make payment
of any Defaulted Interest to the Persons in whose names the
Securi ties (or their respective Predecessor Securities) are
regis tered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such De
faulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address
as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the follow
ing Clause (2).
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue (including in each such case
Compounded Interest), which were carried by such other Securi ty.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such
21
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security that is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable, and the Company shall not make nor be
required to make any other payment, adjustment or allowance with respect to
accrued but unpaid interest (including Compounded Interest) on the Securities
being converted, which shall be deemed to be paid in full.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and
(subject to Section 307) interest (including Compounded Interest) on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
as directed by a Company Order; provided, however, that the Trustee shall not
be required to destroy the certificates representing such cancelled
Securities.
Section 310 Right of Set Off.
Notwithstanding anything to the contrary in this Indenture,
the Company shall have the right to set off any payment it is otherwise
required to make hereunder to the extent the Company has theretofore made, or
is concurrently on the date of such payment making, a payment under the
Guarantee.
22
Section 311 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.
Section 312 Extension of Interest Payment Period; Notice of
Extension.
(a) The Company shall have the right, at any time during the
term of this Security, from time to time to defer payments of inter est by
extending the interest payment period of such Security for up to 20
consecutive quarters (an "Extended Interest Payment Period") during which
Extended Interest Payment Period no interest shall be due and payable;
provided, that no Extended Interest Payment Period may extend beyond the
Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the exten sion of the interest
payment period, will bear interest thereon at 6 1/4% compounded quarterly for
each quarter of the Extended Interest Payment Period ("Compounded Interest").
At the end of the Extended Interest Payment Period, the Company shall pay all
interest then accrued and unpaid on the Securities, including any Additional
Payments that shall be payable to the Holders of the Securities in whose names
the Securi ties are registered in the Security Registrar on the first Regular
Record Date after the end of the Extended Interest Payment Period. Before the
expiration of any Extended Interest Payment Period, the Company may elect to
continue to defer payments of interest for another consecutive Extended
Interest Payment Period; provided, that any such Extended Interest Payment
Period, together with all such previous and consecutive Extended Interest
Payment Periods, shall not exceed 20 consecutive quarters and shall not extend
beyond the Maturity Date. Upon the expiration of any Extended Interest Payment
Period and upon the payment of all Compounded Interest and Additional
Interest, if any, then due, the Company may commence a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extended Interest Payment Period except at the end
thereof.
23
(b) If the Property Trustee is the sole Holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period at least one Business Day prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) if the Pre ferred Securities are
listed on the New York Stock Exchange or other stock exchange or quotation
system, the date the Trust is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than ten Business Days prior to such record
date.
(c) If the Property Trustee is not the sole holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Securities and the Trustee
written notice of its selection of an Extended Interest Payment Period at
least ten Business Days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) if the Preferred Securities are listed on the
New York Stock Exchange or other stock exchange or quotation system, the date
the Company is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Securities of the
record date or the date such dis tributions are payable, but in any event not
less than two Business Days prior to such record date.
(d) The quarter in respect of which any notice is given
pursuant to paragraphs (b) and (c) hereof shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under paragraph (a) hereof.
Section 313 Paying Agent, Security Registrar and Conversion
Agent.
The Trustee will initially act as Paying Agent, Security
Registrar and Conversion Agent. The Company may change any Paying Agent,
Security Registrar, co-registrar or Conversion Agent without prior notice. The
Company or any of its Affiliates may act in any such capacity.
Section 314 Global Security.
(a) In connection with a Dissolution Event,
(i) the Securities in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a global
Security in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Securities (a "Global Security"), to be registered
in the name of the Depositary, or its nominee, and delivered by the Trustee to
the Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Security in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery in
accordance with this Inden-
24
ture. Payments on the Securities issued as a Global Security will be
made to the Depositary; and
(ii) if any Preferred Securities are held in
non book-entry certificated form, the Securities in certificated form may be
presented to the Trustee by the Property Trustee and any Preferred Secu rity
Certificate which represents Preferred Securities, other than Pre ferred
Securities held by the Depositary or its nominee, ("Non Book- Entry Preferred
Securities") will be deemed to represent beneficial interests in Securities
presented to the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are presented
to the Security Registrar for transfer or reissuance at which time such
Preferred Security Certifi cates will be cancelled and a Security, registered
in the name of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate cancelled, will be executed by
the Company and delivered to the Trustee for authentication and delivery in
accordance with this Indenture. On issue of such Securities, Securities with
an equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Exchange Act or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and, subject to Article Three of
this Indenture, the Trustee, upon written notice from the Company and receipt
of a Company Order, will authenticate and deliver the Securities in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. In addition, upon an Event of
Default or if the Company may at any time determine that the Securities shall
no longer be represented by a Global Security. In such event the Company will
execute, and subject to Section 305 of this Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery the Securities in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons, in
authorized denominations, the Global Security shall be cancelled by the
Trustee. Such Securities in definitive registered form issued in exchange for
the Global Security 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
25
Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so regis
tered.
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except
as to any surviving rights of conversion, registration of transfer or exchange
of Securities herein expressly provided for), and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation have become due and payable and
the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest (including
Additional Payments) to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
26
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or
any Paying Agent) for the payment of Securities subsequently converted shall
be returned to the Company upon Company Request.
ARTICLE FIVE
Remedies
Section 501 Events of Default.
"Event of Default," wherever used herein, means any one of
the following events that has occurred and is continuing (whatever the reason
for such Event of Default and whether it shall be occasioned by the provisions
of Article Twelve or be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of the
principal of (or premium, if any, on) any Security when due
whether at Matu rity, upon redemption, by declaration or
otherwise; or
(2) default in the payment of any interest
upon any Security, including any Additional Payments in
respect thereof, when it becomes due and payable, and
continuance of such default for a period of 30 days;
provided, that a valid extension of the interest payment
period by the Company pursuant to this Indenture shall not
constitute a default in the payment of interest (including
any Additional Payments) for this purpose; or
(3) failure by the Company to issue and
deliver Common Stock upon an election to convert the
Securities into Common Stock in accordance with Article
Thirteen hereof; or
(4) default in the performance, or breach,
of any covenant or warranty of the Company in this Indenture
(other than a default in whose performance or whose breach
is
27
elsewhere in this Section specifically dealt with), and con tinuance
of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) entry by a court having jurisdiction in the pre mises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorga nization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, ar
rangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or ap pointing a
custodian, receiver, liquidator, assignee, trust ee, sequestrator or
other similar official of the Company or of substantially all of the
property of the Company, or or dering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or to the entry of a decree or order for
relief in respect of itself in an involuntary case or proceeding
under any appli cable Federal or State bankruptcy, insolvency,
reorganiza tion or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company, or
the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law,
or the consent by the Company to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liqui dator, assignee, trustee, sequestrator or other similar
official of the Company or of substantially all of the property of
the Company, or the making by the Company of an assignment for the
benefit of creditors, or the admission by the Company in writing of
its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such
action; or
(7) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the
distribution of Securities to holders of Preferred Securities in
liquidation or redemption of their interests in the Trust, (ii) the
redemption of all of the outstanding Preferred Securities of the
Trust or
28
(iii) certain mergers, consolidations or amalgamations, each
as permitted by the Declaration.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities and any other amounts payable hereunder to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal and all
accrued interest shall become immediately due and pay able.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as provided in this Article hereinafter, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest (including any
Additional Payments) on all Securities,
(B) the principal of any Securities
which have become due otherwise than by such
declaration of acceleration and interest thereon
at the rate borne by the Securities, and
(C) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest (including
any Additional Payments) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days,
or
29
(2) default is made in the payment of the principal
of any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and interest, as applicable,
(including any Additional Payments) and, to the extent that payment thereof
shall be legally enforceable, interest on any overdue principal and on any
overdue interest (including any Additional Interest), at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disburse ments and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 505 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
30
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506 Application of Money Collected.
Subject to Article Twelve, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or interest (including any Additional
Payments), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due
the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of and interest (including any Additional
Payments) on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal and interest (including any Compounded
Interest), respectively.
Section 507 Limitation on Suits.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
31
period by the Holders of a majority in principal amount of
the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
Section 508 Unconditional Right of Holders to Receive Principal
and Interest and Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Sections
307 and 312) interest (including any Additional Payments) on such Security on
the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to convert such Security in
accordance with Article Thirteen and to insti tute suit for the enforcement of
any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and
32
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided, that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513 Waiver of Past Defaults.
Subject to Section 902 hereof, the Holders of not less than
a majority in principal amount of the Outstanding Securities may on behalf of
the Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of, premium, if any, or
interest (including any Additional Payments) on any Security (unless
such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by
acceleration has been depos ited with the Trustee); or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected; provided, however, that
if the Securities are held by the Trust or a trustee of the Trust,
such waiver shall not be effective until the holders of a majority in
liquidation preference of Trust Securities of the Trust shall have
consented to such waiver; provided, further, that if the consent of
the Holder of each outstanding Security is required, such waiver
shall not be effective until each holder of the Securities of the
Trust shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514 Undertaking for Costs.
33
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant
in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided, that neither this Section nor
the Trust Indenture Act shall be deemed to authorize any court to require such
an undertaking or to make such an assessment in any suit instituted by the
Company or the Trustee or in any suit for the enforcement of the right to
receive the principal of and interest (including any Additional Payments) on
any Security or to convert any Security in accordance with Article Thirteen.
Section 515 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution pursuant to this Indenture of any lawful power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 516 Enforcement by Holders of Preferred Securities.
Notwithstanding anything to the contrary contained herein,
if a Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest (subject to Section
312) or principal on the Securities on the date such interest or principal is
otherwise payable, the Company acknowledges that, in such event, a holder of
Preferred Securities may directly institute a proceeding for enforcement of
payment to such holder of the principal of or interest on the Securities
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder on or after the respective due date
specified in the Securities.
ARTICLE SIX
The Trustee
34
Section 601 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602 Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
35
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to reasonable
examination of the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without
negligence or willful misconduct, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
Section 604 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
Section 605 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar, or such other agent.
36
Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
fees, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the ex penses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it pursuant
to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of the Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
37
Section 608 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000 and has
its Corporate Trust Office in New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 610 Resignation and Removal; Appointment of Successor.
(a) resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor
by the Company or by any such Holder, or
38
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by Company Order may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
1 If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a major ity in
principal amount of the Outstanding Securities delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Holders and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
1 The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; provided,
that on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments required to more fully and certainly vest in
and confirm to such successor Trustee all such rights, powers and trusts.
39
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not
more than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
40
Section 702 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703 Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing May
15, 1996, the Trustee shall transmit by mail to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
Section 704 Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided, that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 business days after the same is
so required to be filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
41
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance,
transfer or lease, all or substantially all of the properties and
assets of the Company on a consolidated basis shall be a corporation,
partnership or trust, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the
Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed
and shall have provided for conversion rights in accordance with
Article Thirteen;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is re quired in connection with such
transaction, such supplemen tal indenture, comply with this Article
and that all condi tions precedent herein provided for relating to
such transaction have been complied with.
This Section shall only apply to a merger or consolidation
in which the Company is not the surviving corporation and to conveyances,
leases and transfers by the Company as transferor or lessor.
Section 802 Successor Substituted.
42
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company on a consolidated
basis in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Company Order, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power
herein conferred upon the Company; or
(3) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article
Thirteen; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture; provided, that
such action pursuant to this clause (4) shall not materially
adversely affect the interests of the Holders of the Securities or,
so long as any of the Preferred Securities shall remain outstanding,
the holders of the Preferred Securities;
(5) to comply with the requirements of the
Commission in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act; or
(6) to make provision for transfer procedures,
certification, book-entry provisions, the form of restricted secu
rities legends, if any, to be placed on Securities, and all other
matters required pursuant to Section 305(b) or otherwise necessary,
desirable or appropriate in connection with the issu-
43
ance of Securities to holders of Preferred Securities in the event of
a distribution of Securities by the Trust if a Special Event occurs
and is continuing.
Section 902 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) extend the Stated Maturity of the principal of, or
(subject to Section 312) any installment of interest (in cluding any
Additional Payments) on, any Security, or reduce the principal amount
thereof, or reduce the rate or (subject to Section 312) extend the
time for payment of interest thereon, or reduce any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the en forcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
materially adversely affect the right to convert any Security as
provided in Article Thir teen (except as permitted by Section
901(3)), or modify the provisions of this Indenture with respect to
the subor dination of the Securities in a manner adverse to the
Holders,
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby;
provided that if the Securities are held by the Trust or a trustee of the
Trust, such supplemental indenture shall not be effective until the holders of
a majority in liquidation preference of Trust Securities shall have consented
to such supplemental indenture; provided, further, that if the consent of the
Holder of each Outstanding Security is re quired, such supplemental indenture
shall not be effective until each
44
holder of the Trust Securities of the Trust shall have consented to such
supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record
date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby. No such supplemental indenture
shall directly or indirectly modify the provisions of Article Twelve in any
manner which might terminate or impair the rights of the Senior Indebtedness
pursuant to such subordination provisions.
Section 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
Section 906 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in
45
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants; Representations and Warranties
Section 1001 Payment of Principal and Interest.
The Company will duly and punctually pay the principal of
and interest on the Securities in accordance with the terms of the Securities
and this Indenture.
Section 1002 Maintenance of Office or Agency.
The Company will maintain in the United States an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Securities may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the United States for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents,
it will, prior to each due date of the principal of or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and
46
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon
the written request of the Trustee, forthwith pay to the Trustee all sums held
in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of any such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
Section 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the material terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
47
Section 1005 Limitation on Dividends; Covenants as to the Trust.
(a) The Company covenants that the Company (i) shall not
declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock, except for dividends or distributions in shares of its capital
stock of the same class on which such dividend or distribution is being paid
and conversions or exchanges of common stock of one class into common stock of
another class, (ii) shall not make any payment of interest, principal or
premium, if any, on or repay, repur chase or redeem any debt securities issued
by the Company after the date of original issuance of the Securities that rank
pari passu with or junior to the Securities (except by conversion into or
exchange for shares of its capital stock and except for a redemption, purchase
or other acquisition of shares of its capital stock made for the purposes of
an employee incentive plan or benefit plan of the Company or any of its
Subsidiaries), and (iii) shall not make any guarantee payments with respect to
the foregoing (other than pursuant to the Guarantee and the Common Securities
Guarantee); in each case of clauses (i), (ii) and (iii) above if at such time
(A) there shall have occurred and be continuing any event that with the giving
of notice or the lapse of time or both, would constitute an Event of Default
hereunder, (B) the Company shall be in default with respect to its payment of
any obligations under the Guarantee or (C) the Company shall have given notice
of its selection of an Extended Interest Payment Period as provided herein and
such period, or any extension thereof, shall be continuing.
(b) The Company also covenants and agrees (i) that it shall
directly or indirectly maintain 100% ownership of the Common Securities of the
Trust; provided, however, that any successor of the
Company as provided in Article Eight hereunder may succeed to the Company's
ownership of such Common Securities and (ii) that it shall use its reasonable
efforts, consistent with the terms and provisions of the Declaration, to cause
the Trust (x) to remain a statutory business trust, except in connection with
the distribution of the Securities to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of the
Trust, or certain merg ers, consolidations or amalgamations of the Trust, each
as permitted by the Declaration, and (y) to otherwise continue to be
classified as a grantor trust for United States Federal income tax purposes.
Section 1006 Payment of Expenses of the Trust.
In connection with the offering, sale and issuance of the
Securities to the Property Trustee in connection with the sale of the Trust
Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities, including commissions to the
Initial Purchasers payable pursuant to the Purchase Agreement and compensation
of the Trustee under the Indenture in accordance with the provisions of
Section 607 of the Indenture;
(b) be responsible for and pay for all debts and
obligations (other than with respect to the Trust Securities) of the
48
CAPITAL PRINTING SYSTEMS]
Trust, pay for all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses relating to
the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
tele communications expenses and costs and expenses incurred in connection
with the acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
Section 1007 Registration Rights.
The holders of the Preferred Securities, the Securities and
the Guarantee are entitled to the benefits of a Registration Rights Agreement,
dated as of April 10, 1996, among the Company and the Initial Purchasers (the
"Registration Rights Agreement"). Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the holders of the
Preferred Securities, the Securities and the Guaran tee that, subject to the
terms of the Registration Rights Agreement (including, without limitation,
those provisions permitting a Suspension (as defined therein)) (i) it will, at
its cost, as promptly as reasonably practicable, prepare and file a Shelf
Registration Statement (as defined in the Registration Rights Agreement) with
the Commission with respect to resales of the Preferred Securities, together
with the Securities, the Guarantee and the related Common Stock issuable upon
conversion thereof, (ii) it will use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission on or
prior to October 7, 1996 and (iii) it will use its rea sonable best efforts to
keep such Shelf Registration Statement continu ously effective under the
Securities Act of 1933, as amended, until the third anniversary of the date of
the effectiveness of the Shelf Regis tration Statement or such earlier date as
is provided in the Registra tion Rights Agreement. The Company and the Trust
agree that from and after the date on which any Registration Default (as
defined below) occurs, the per annum interest rate on the Securities will
increase by 50 basis points (.50%). Such increase will remain in effect from
and including the date on which any such Registration Default shall occur (or
be deemed to occur as described below) to but excluding the date on which all
Registration Defaults have been cured (or have been deemed to be cured as
described below), on which date the interest rate on the Securities will
revert to the interest rate originally borne by the Securities.
49
"Registration Default" shall mean any of the following
events:
(i) on or prior to October 7, 1996, the Registrable
Securities (as defined in the Registration Rights Agreement) are not
the subject of a Shelf Registration Statement which has become
effective;
(ii) the Registrable Securities are the subject of
a Shelf Registration Statement which was effective but which has
ceased to be effective for any reason prior to the end of the Shelf
Registration Period (as defined in the Registration Rights
Agreement);
(iii) the occurrence of a Suspension (as defined in
the Registration Rights Agreement); or
(iv) the occurrence of an event contemplated by
paragraph 3(c)(2)(iii) of the Registration Rights Agreement (an
"Amendment Event");
provided, however, that if the Registration Default consists of the occurrence
of any event contemplated by clause (iii) or (iv) above, then such
Registration Default shall not be deemed to have occurred until the expiration
of 30 Business Days after the date of the occurrence of such Suspension or
Amendment Event, provided that (a) the Trust and the Company thereafter
reasonably promptly comply with the requirements of paragraph 3(i) of the
Registration Rights Agreement, if applicable, and (b) in the case of such
Amendment Event resulting from an action taken by the Company or the Trust,
such action was taken in good faith; and provided, further, that a
Registration Default shall not constitute a default or Event of Default
hereunder.
A Registration Default shall be deemed to have been cured
and cease to exist on the date subsequent to the occurrence of such
Registration Default on which:
(x) in the case of a Registration Default described
in clause (i) or (ii) above, the Shelf Registration Statement
covering such Registrable Securities shall become effective; or
(y) in the case of a Registration Default described
in clause (iii) or (iv) above, upon the Company and the Trust taking
action to notify the Holders (for purposes of this clause (y), as
that term is defined in the Registration Rights Agreement) of the
Registrable Securities that such Suspension or Amendment Event has
ended. For purposes of this clause (y), taking action to notify
Holders shall be deemed sufficient when notice is first deposited in
first class mail or delivered to a courier service or filed with the
SEC or publicly disseminated by press release or other release to a
news reporting service.
50
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Right of Redemption.
(a) The Securities may be redeemed at the election of the
Company, as a whole or in part, at any time or from time to time after April
9, 1999, at the Redemption Prices set forth in Section 1109 below.
(b) The Securities may be redeemed as a whole but not in part
at the election of the Company at any time within 90 days following the
occurrence of a Tax Event; provided, however, that if, at the time there is
available to the Company or the Trust the opportunity to eliminate, within
such 90-day period, the Tax Event by taking some ministerial action, including
but not limited to filing a form or making an election, or pursuing some other
similar reasonable measure, which, in the sole judgment of the Company, has or
will cause no adverse effect on the Trust or the Company or involves or will
involve no material cost, then the Company or the Trust shall pursue such
measure in lieu of redemption.
Section 1102 Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by Section 1101, shall be made in accordance with such provision and
this Article.
Section 1103 Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities pursuant to
Section 1101 shall be evidenced by a Company Order. In case of any redemption
at the election of the Company, the Company shall, at least 60 days and no
more than 90 days prior to the Redemption Date fixed by the Company, notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities to be redeemed and provide a copy of the notice of redemption given
to Holders of Securities to be redeemed pursuant to Section 1104.
Section 1104 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to $50
or any integral multiple thereof) of the principal amount of the Securities.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
51
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1105 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 (or in the case of a redemption at
the election of the Company, not less than 20) nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be re deemed, at such
Holder's address appearing in the Security Register.
All notices of redemption shall identify the Securities to
be redeemed (including, if relevant, CUSIP or ISIN number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and
that interest thereon will cease to accrue on and after said date,
and
(4) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1106 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
If any Security called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so
52
segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be dis charged from
such trust.
Section 1107 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest (including Additional Payments, if any) to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to the terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security.
Section 1108 Securities Redeemed in Part.
In the event of any redemption in part, the Company shall
not be required to (i) issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days before
any selection for redemption of Securities and ending at the close of business
on the earliest date in which the relevant notice of redemption is deemed to
have been given to all holders of Securities to be so redeemed and (ii)
register the transfer of or exchange any Securi ties so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Securities being redeemed in part.
Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Secu rity without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 1109 Optional Redemption.
(a) The Company shall have the right to redeem the
Securities, in whole or in part, at any time or from time to time on or
53
after April 9, 1999, upon not less than 20 nor more than 60 days' notice, at a
Redemption Price equal to $52.08 per $50 principal amount of the Securities to
be redeemed plus any accrued and unpaid interest, including Additional
Payments, if any, to the Redemption Date, if re deemed on or before April 9,
2000, and at the following percentages of the principal amount of Securities,
if redeemed during the 12-month period ending April 9:
Price per $50
Principal
Year Amount
2001........................................ $51.74
2002........................................ 51.39
2003........................................ 51.04
2004........................................ 50.69
2005........................................ 50.35
and thereafter at $50 per $50 principal amount of the Securities plus, in each
case, accrued and unpaid interest, including Additional Payments, if any, to
the Redemption Date. Any redemption pursuant to this Section 1109 shall be
made pursuant to the provisions of Sections 1101 through 1108 hereof.
(b) If a partial redemption of the Securities would result in
the delisting of the Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Preferred
Securities are listed, the Company shall not be permitted to effect such
partial redemption and may only redeem the Securities in whole.
Section 1110 Tax Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) the Trustee shall have been informed by tax counsel that a
No Recognition Opinion cannot be delivered to the Trust, then, notwithstanding
Section 1109(a) but subject to Section 1109(b), the Company shall have the
right upon not less than 30 days nor more than 60 days notice to the Holders
of the Securities to redeem the Securities in whole or in part for cash at $50
per $50 principal amount of the Securities plus accrued and unpaid interest,
including Additional Payments, if any, within 90 days following the occurrence
of such Tax Event (the "90 Day Period"); provided, however, that if, at the
time there is available to the Company or the Trust the opportunity to elimi
nate within the 90 Day Period, the Tax Event by taking some ministerial
action, including, but not limited to, filing a form or making an elec tion,
or pursuing some other similar reasonable measure which, in the sole judgment
of the Company, will have no adverse effect on the Compa ny, the Trust or the
Holders of the Trust Securities issued by the Trust and will involve no
material cost, then the Company or the Trust shall pursue such ministerial
action or other measure in lieu of redemption, and provided, further, that the
Company shall have no right to redeem the Securities while the Trust is
pursuing any ministerial action or
54
other similar measure pursuant to its obligations under the Declaration.
The redemption payment of $50 per $50 principal amount of the
Securities plus accrued and unpaid interest, including Additional Payments, if
any, shall be made prior to 12:00 noon, New York time, on the date of such
redemption or such earlier time as the Company deter mines provided that the
Company shall deposit with the Trustee an amount sufficient to make such
redemption payment by 10:00 a.m. on the date such redemption payment is to be
made.
ARTICLE TWELVE
Subordination of Securities
Section 1201 Agreement to Subordinate.
The Company covenants and agrees, and each Holder of
Securities by such Holder's acceptance thereof likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this Article
Twelve; and each Holder of a Security, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of, premium, if any,
and interest (including Additional Payments) on all Securities issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred; provided however, that no provision of this Article
Twelve shall prevent the occurrence of any default or Event of Default
hereunder.
Section 1202 Default on Senior Indebtedness.
In the event and during the continuation of any default by
the Company in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness continuing beyond the period of grace,
if any, specified in the instrument evidencing such Senior Indebtedness,
unless and until such default shall have been cured or waived or shall have
ceased to exist, or in the event that the maturity of any Senior Indebtedness
has been accelerated because of a default, then no payment shall be made by
the Company with respect to the principal of (including redemption payments),
premium, if any, or inter est on the Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is prohibited by
the preceding paragraph of this Section 1202, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders
of Senior Indebtedness or their respective represen tatives, or to the trustee
or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear,
but only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in writing
within 90 days of such pay ment of the amounts then due and owing on the
Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
55
Section 1203 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding up or liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts
(including principal, premium, if any, and interest) due or to become due upon
all Senior Indebtedness shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
on account of the principal (and premium, if any) or interest on the
Securities; and upon any such dissolution or winding up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled, except
for the provisions of this Article Twelve, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representa tive or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Indebtedness, before any payment or distribution is made to the Holders
of Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, or provision is made for such payment in money
in accordance with its terms, such payment or distribution shall be held in
trust for the benefit of and shall be paid over or delivered to the holders of
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness.
For purposes of this Article Twelve, the words, "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent provided in this
Article Twelve with respect to the Securities to the payment of all Senior
Indebtedness which may at the
56
time be outstanding; provided, that (i) such Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization
or readjustment. The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of all or substantially
all its properties and assets on a consolidated basis to another Person upon
the terms and conditions provided for in Article Eight hereof shall not be
deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 1203 if such other Person shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the
conditions stated in Article Eight hereof. Nothing in Section 1202 or in this
Section 1203 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 607 hereof.
Section 1204 Subrogation.
Subject to the payment in full of all Senior Indebtedness,
the rights of the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of (and
premium, if any,) and interest on the Securities shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except
for the provisions of this Article Twelve, and no payment over pursuant to the
provisions of this Article Twelve, to or for the benefit of the holders of
such Senior Indebtedness by Holders of the Securities or the Trustee, shall,
as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article Twelve are and are intended solely for the
purposes of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness, and
the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company, as the case may be, other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Twelve of the holders of
such Senior Indebtedness in respect of cash, property or securities of the
57
Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Twelve, the Trustee, subject to the provisions of
Section 603, and the Holders of the Securities, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of the Securities, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, as
the case may be, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Twelve.
Section 1205 Trustee to Effectuate Subordination.
Each Holder of Securities by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve and appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes.
Section 1206 Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article Twelve.
Notwithstanding the provisions of this Article Twelve or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provision of this Article Twelve, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof at the Corporate Trust
Office of the Trustee from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 603 hereof,
shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 1206 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 603, shall
be entitled to rely on the delivery to it of a written notice by a
58
Person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee on behalf of any such
holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Twelve, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the right of such Person under this Article Twelve,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1207 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Twelve in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are set forth in this Article Twelve, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Section 603, the Trustee
shall not be liable to any holder of such Senior Indebtedness if it shall pay
over or deliver to Holders of Securities, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article Twelve or otherwise. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set
forth in this Article Twelve and no implied covenants or obligations with
respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
Section 1208 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from
59
time to time, without the consent of or notice to the Trustee or the Holders
of the Securities, without incurring responsibility to the holders of the
Securities and without impairing or releasing the subordination provided in
this Article Twelve or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend
or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
ARTICLE THIRTEEN
Conversion of Securities
Section 1301 Conversion Rights.
Subject to and upon compliance with the provisions of this
Article, the Securities are convertible, at the option of the Holder, at any
time on or before redemption as provided below or the close of business at
their Stated Maturity, into fully paid and nonassessable shares of Common
Stock of the Company at an initial conversion rate of 1.6728 shares of Common
Stock for each $50 in aggregate principal amount of Securities (equal to a
conversion price of $29.89 per share of Common Stock), subject to adjustment
as described in this Article Thirteen. A Holder of Securities may convert any
portion of the principal amount of the Securities into that number of fully
paid and nonassessable shares of Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by dividing the
principal amount of the Securities to be converted by such conversion price.
In case a Security or portion thereof is called for redemption, such
conversion right in respect of the Security or portion so called shall expire
at the close of business on the corresponding Redemption Date, unless the
Company defaults in making the payment due upon redemption.
60
Section 1302 Conversion Procedures.
(a) In order to convert all or a portion of the Securities,
the Holder thereof shall deliver to the Conversion Agent an irrevocable Notice
of Conversion setting forth the principal amount of Securities to be
converted, together with the name or names, if other than the Holder, in which
the shares of Common Stock should be issued upon conversion and, if such
Securities are definitive Securities, surrender to the Conversion Agent the
Securities to be converted, duly endorsed or assigned to the Company or in
blank. In addition, a holder of Preferred Securities may exercise its right
under the Declaration to convert such Preferred Securities into Common Stock
by delivering to the Conversion Agent an irrevocable Notice of Conversion
setting forth the information called for by the preceding sentence and
directing the Conversion Agent (i) to exchange such Preferred Security for a
portion of the Securities held by the Trust (at an exchange rate of $50
principal amount of Securities for each Preferred Security) and (ii) to
immediately convert such Securities, on behalf of such holder, into Common
Stock of the Company pursuant to this Article Thirteen and, if such Preferred
Securities are in definitive form, surrendering such Preferred Securities,
duly endorsed or assigned to the Company or in blank. So long as any Preferred
Securities are outstanding, the Trust shall not convert any Securities except
pursuant to a Notice of Conversion duly executed and delivered to the
Conversion Agent by a holder of Preferred Securities.
If a Notice of Conversion is delivered on or after the
Regular Record Date and prior to the subsequent Interest Payment Date, the
Holder will be entitled to receive the interest payable on the subsequent
Interest Payment Date on the portion of Securities to be converted
notwithstanding the conversion thereof prior to such Interest Payment Date.
Except as otherwise provided in the immediately preceding sentence, in the
case of any Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Security shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment
or allowance with respect to accrued but unpaid interest on the Securities
being converted, which shall be deemed to be paid in full. Each conversion
shall be deemed to have been effected immediately prior to the close of
business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Preferred Securities effecting a conversion thereof pursuant to its
conversion rights under the Declaration, as the case may be. The Person or
Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock as of the Conversion Date. As promptly as practicable on or after
the Conversion Date, the Company shall issue and deliver at the office of the
Conversion Agent, unless otherwise directed by the Holder in the Notice of
Conversion, a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
61
(b) The Company's delivery upon conversion of the fixed
number of shares of Common Stock into which the Securities are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall
be deemed to satisfy the Company's obligation to pay the principal amount at
Maturity of the portion of Securities so converted and any unpaid interest
(including Additional Payments) accrued on such Securities at the time of such
conversion.
(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the current market price of such fractional interest on the date on which the
Securities or Preferred Securities, as the case may be, were duly surrendered
to the Conversion Agent for conversion, or, if such day is not a Trading Day,
on the next Trading Day, and the Conversion Agent in turn will make such
payment, if any, to the Holder of the Securities or the holder of the
Preferred Securities so converted.
(d) In the event of the conversion of any Security in part
only, a new Security or Securities for the unconverted portion thereof will be
issued in the name of the Holder thereof upon the cancellation thereof in
accordance with Section 305.
(e) In effecting the conversion transactions described in
this Section, the Conversion Agent is acting as agent of the holders of
Preferred Securities (in the exchange of Preferred Securities for Securities)
and as agent of the Holders of Securities (in the conversion of Securities
into Common Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Securities held by the Trust from time to time for Preferred Securities in
connection with the conversion of such Preferred Securities in accordance with
this Article Thirteen and (ii) to convert all or a portion of the Securities
into Common Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Article Thirteen and to deliver to the
Trust a new Security or Securities for any resulting unconverted principal
amount.
(f) All shares of Common Stock delivered upon any conversion
of Restricted Securities shall bear a restrictive legend substantially in the
form of the legend required to be set forth on such Securities and shall be
subject to the restrictions on transfer provided in such legend and in Section
305(b) hereof. Neither the Trustee nor the Conversion Agent shall have any
responsibility for the inclusion or content of any such restrictive legend on
such Common Stock; provided, however, that the Trustee or the Conversion Agent
shall have provided to the Company or to the Company's transfer agent for such
Common Stock, prior to or concurrently with a request to the Company to
deliver to such Conversion Agent certificates for such Common Stock, written
notice that the Securities delivered for conversion are Restricted Securities.
Section 1303 Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
62
(a) In case the Company shall, while any of the Securities
are outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its out standing shares
of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its shares of
Common Stock any shares of capital stock of the Company, the conversion
privilege and the conversion price in effect immediately prior to such action
shall be adjusted so that the Holder of any Securities thereafter surrendered
for conversion shall be entitled to receive the number of shares of capital
stock of the Company which he would have owned immediately following such
action had such Securities been converted immediately prior thereto. An
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date
in case of a subdivision, combination or reclassification (or immediately
after the record date if a record date shall have been established for such
event). If, as a result of an adjustment made pursuant to this subsection (a),
the Holder of any Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes or series of capital stock
of the Company, the Board of Direc tors (whose determination shall be
conclusive and shall be described in a Board Resolution filed with the
Trustee) shall determine the allocation of the adjusted conversion price
between or among shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the Securities
are outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per share of Common Stock
(as determined pursuant to subsection (d) below) on the record date mentioned
below, the conversion price for the Securities shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price in
effect immediately prior to the date of issuance of such rights or warrants by
a fraction of which the numerator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or warrants plus 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, and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock offered for subscription
or purchase. Such adjustment shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
rights or warrants. For the purposes of this subsection, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company. The Company shall not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the Company. In case
any rights or warrants referred to in this subsection in respect of which an
adjustment shall have been made shall expire unexercised within 45 days after
the same shall have been distributed or issued by the Company, the conversion
price shall be readjusted at the time of such expiration to the conversion
price that would have been in effect if no
63
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this subparagraph, in case
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class or series of
capital stock, cash or assets (including securities, but excluding any rights
or warrants referred to in subparagraph (b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in
subparagraph (a) of this Section 1303), the conversion price shall be reduced
so that the same shall equal the price determined by multiplying the
conversion price in effect immedi ately prior to the effectiveness of the
conversion price reduction contemplated by this subparagraph (c) by a fraction
of which the numerator shall be the current market price per share (determined
as provided in subparagraph (d)) of the Common Stock on the date fixed for the
payment of such distribution (the "Reference Date") less the fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors),
on the Reference Date, of the portion of the evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per share
of the Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the Reference Date. In the event
that such dividend or distribution is not so paid or made, the conversion
price shall again be adjusted to be the conversion price which would then be
in effect if such dividend or distribution had not occurred. If the Board of
Directors determines the fair market value of any distribu tion for purposes
of this subparagraph (c) by reference to the actual or when issued trading
market for any securities comprising such distribution, it must in doing so
consider the prices in such market over the same period used in computing the
current market price per share of Common Stock (determined as provided in
subparagraph (d)). For purposes of this subparagraph (c), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Common Stock or such
rights or warrants (making any conversion price reduction required by this
subparagraph (c)) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (making any further
conversion price reduction required by subparagraph (a) or (b)), except (A)
the Reference Date of such dividend or distribu tion as defined in this
subparagraph shall be substituted as (a) "the record date in the case of a
dividend or other distribution," and (b) "the record date for the
determination of stockholders entitled to receive such rights or warrants" and
(c) "the date fixed for such deter mination" within the meaning of
subparagraphs (a) and (b) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the conversion price in subparagraph (a).
(d) For the purpose of any computation under subparagraphs (b)
or (c), the current market price per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing
64
Prices 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 day in question and, if applicable, the day before the "ex"
date with respect to the issuance or distribution requiring such computation;
provided, however, that if another event occurs that would require an
adjustment pursuant to subparagraph (a) through (c), inclusive, the Board of
Directors may make such adjustments to the Closing Prices during such five
Trading Day period as it deems appropriate to effectuate the intent of the
adjustments in this Sec tion 1303, in which case any such determination by the
Board of Directors shall be set forth in a Board Resolution and shall be
conclusive. For purposes of this paragraph, the term "ex" date means the first
date on which the Common Stock trades regular way on the New York Stock
Exchange or on such successor securities exchange as the Common Stock may be
listed or in the relevant market from which the Closing Prices were obtained
without the right to receive such issuance or distribution.
(e) The Company may make such reductions in the conversion
price, in addition to those required by subparagraphs (a) through (c), as it
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated
as such for income tax purposes. The Company from time to time may reduce the
conversion price by any amount for any period of time if the period is at
least twenty (20) days, the reduction is irrevocable during the period, and
the Board of Directors of the Company shall have made a determination that
such reduction would be in the best interest of the Company, which
determination shall be conclusive. Whenever the conversion price is reduced
pursuant to the preceding sentence, the Company shall mail to holders of
record of the Securities a notice of the reduction at least fifteen (15) days
prior to the date the reduced conversion price takes effect, and such notice
shall state the reduced conversion price and the period it will be in effect.
(f) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the conversion price; provided, however, that any adjustments which by reason
of this subparagraph are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(g) If any action would require adjustment of the conver sion
price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holder of the Securities.
Section 1304 Reclassification, Consolidation, Merger or Sale of
Assets.
In the event that the Company shall be a party to any
transaction (including without limitation (a) any recapitalization or
reclassification of the Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or
65
as a result of a subdivision or combination of the Common Stock), (b) any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger or
consolidation which does not result in a reclassification, conversion,
exchange or cancellation of the outstanding shares of Common Stock of the
Company), (c) any sale or transfer of all or substantially all of the assets
of the Company or (d) any compulsory share exchange pursuant to which the
Common Stock is converted into the right to receive other securities, cash or
other property, then lawful provision shall be made as part of the terms of
such transaction (i) whereby the Holder of each Security then outstanding
shall have the right thereafter to convert such Security only into the kind
and amount of securities, cash and other property receivable upon consummation
of such transaction by a holder of the number of shares of Common Stock of the
Company into which such Security could have been converted immediately prior
to such transaction and (ii) to provide for adjustments which, for events
subsequent to the effective date of such provision, shall be as nearly
equivalent as may be prac ticable to the adjustments provided for in this
Article Thirteen. The above provisions shall similarly apply to successive
transactions of the foregoing type.
Section 1305 Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein
provided:
(a) the Company shall compute the adjusted conversion price
and shall prepare a certificate signed by the Chief Financial Officer or the
Treasurer of the Company setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed with the Trustee, the Conversion
Agent and the transfer agent for the Preferred Securities and the Securities;
and
(b) a notice stating the conversion price has been adjusted
and setting forth the adjusted conversion price shall as soon as practicable
be mailed by the Company to all record holders of Preferred Securities and the
Securities at their last addresses as they appear upon the stock transfer
books of the Company and the Trust.
Section 1306 Prior Notice of Certain Events.
In case:
(i) the Company shall declare any dividend (or any
other distribution) on its Common Stock, other than (A) a dividend
payable in shares of Common Stock or (B) a dividend payable in cash
that would not require an adjustment pursuant to Section 1303(c);
(ii) the Company shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for or
purchase any shares of stock of any class or series or of any other
rights or warrants;
66
(iii) of any reclassification of Common
Stock (other than a subdivision or combination of the
outstanding Common Stock, or a change in par value, or from
par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the
Company is a party and for which approval of any
stockholders of the Company shall be required, or of the
sale or transfer of all or substantially all of the assets
of the Company or of any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or
other property; or
(iv) of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then the Company shall (a) if any Preferred Securities are outstanding, cause
to be filed with the transfer agent for the Preferred Securities, and shall
cause to be mailed to the holders of record of the Preferred Securities, at
their last addresses as they shall appear upon the stock transfer books the
Trust or (b) shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Security Register, at least fifteen days prior to
the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record (if any) is to be taken for the purpose
of such dividend, distribution, rights or warrants or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
Section 1307 Certain Defined Terms.
The following definitions shall apply to terms used in this
Article Thirteen:
(1) "Closing Price" of any common stock on any day
shall mean the last reported sale price regular way on such day or,
in case no such sale takes place on such day, the average of the
reported closing bid and asked prices regular way of such common
stock, in each case on the NYSE Composite Tape or, if the common
stock is not listed or admitted to trading on such exchange, on the
principal national securities exchange on which such common stock is
listed or admitted to trading, or, if not listed or admitted to
trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any New York Stock
Exchange member firm selected from time to time by the Board of
Directors of the Company for that purpose or, if not so available in
such manner, as otherwise determined in good faith by the Board of
Directors.
67
(2) "Trading Day" shall mean a day on
which any securities are traded on the national securities
exchange or quotation system used to determine the Closing
Price.
Section 1308 Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of
any shares of Common Stock pursuant to any plan providing for the reinvestment
of dividends or interest payable on securities of the Company and the
investment of additional optional amounts in shares of Common Stock under any
such plan, and the issuance of any shares of Common Stock or options or rights
to purchase such shares pursuant to any employee benefit plan or program of
the Company (including without limitation, the Company's Employee Stock Option
Plan, Employee Stock Purchase Plan and 401(k) Plan) or pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Securities were first issued (whether or not
subsequently amended), shall not be deemed to constitute an issuance of Common
Stock or exercisable, exchangeable or convertible securities by the Company to
which any of the adjustment provisions described above applies. There shall
also be no adjustment of the conversion price in case of the issuance of any
stock (or securities convertible into or exchangeable for stock) of the
Company except as specifically described in this Article Thirteen.
68
Section 1309 Certain Additional Rights.
(a) In case the Company shall, by dividend or otherwise,
declare or make a distribution on its Common Stock referred to in Section
1303(c) (including, without limitation, dividends or
distributions referred to in the last sentence of Section 1303(c)), the Holder
of the Securities, upon the conversion thereof subsequent to the close of
business on the date fixed for the determination of stock holders entitled to
receive such distribution and prior to the effectiveness of the conversion
price adjustment in respect of such distribution, shall also be entitled to
receive for each share of Common Stock into which the Securities are
converted, the portion of the shares of Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock; provided, however, that,
at the election of the Company (whose election shall be evidenced by a
resolution of the Board of Directors) with respect to all Holders so
converting, the Company may, in lieu of distributing to such Holder any
portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value
thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board
of Directors). If any conversion of Securities described in the immediately
preceding sentence occurs prior to the payment date for a distribution to
holders of Common Stock which the Holder of Securities so converted is
entitled to receive in accordance with the immediately preceding sentence, the
Company may elect (such election to be evidenced by a resolution of the Board
of Directors) to distribute to such Holder a due bill for the shares of Common
Stock, rights, warrants, evidences of indebtedness, shares of capital stock,
cash or assets to which such Holder is so entitled, provided, that such due
bill (i) meets any applicable requirements of the principal national
securities exchange or other market on which the Common Stock is then traded
and (ii) requires payment or delivery of such shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets
no later than the date of payment or delivery thereof to holders of shares of
Common Stock receiving such distribution.
(b) If the Company shall declare and pay cash dividends on its
Common Stock in an annualized per share amount which exceeds the greater of
(A) the per share amount of the immediately preceding cash dividend on its
Common Stock (as adjusted to reflect any of the events listed in Sections 1303
or 1304) and (B) 15% of the current market price of the Common Stock as of the
Trading Day immediately preceding the date of declaration of such dividend
(the per share amount of any such excess, to the extent of such per share
excess, being herein called an "Excess Amount"), then in any such event the
Holders shall have the right to receive, and the Company will pay to such
Holders, at the time of the payment of such Common Stock dividend, an amount
equal to such Excess Amount (calculated on the basis of the number of shares
of Common Stock that would have been issued to a Holder upon conversion of the
Securities held by such Holder on the record date for payment of such
dividend) unless the Holder converts the Securities and receives such dividend
as a holder of Common Stock.
69
Section 1310. Restrictions on Common Stock Issuable Upon Conversion.
(a) Shares of Common Stock to be issued upon conversion of a
Security in respect of Restricted Preferred Securities (as defined in the
Declaration) shall bear such restrictive legends as the Company may provide in
accordance with applicable law.
(b) If shares of Common Stock to be issued upon conversion
of a Security in respect of Restricted Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred Security,
then the Person in whose name such shares of Common Stock are to be registered
must deliver to the Conversion Agent a certificate satisfactory to the Company
and signed by such Person, as to compliance with the restrictions on transfer
applicable to such Preferred Security.
Neither the Trustee nor any Conversion Agent or Registrar shall be re quired
to register in a name other than that of the Holder shares of Common Stock or
such Preferred Securities issued upon conversion of any such Security in
respect of such Preferred Securities not so accompanied by a properly
completed certificate.
Section 1311. Trustee Not Responsible for Determining Conversion Price
or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any
time be under any duty or responsibility to any Holder of any Security to
determine whether any facts exist which may require any adjustment of the
conversion price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any Conversion Agent shall be accountable with respect
to the validity or value (or the kind of account) of any shares of Common
Stock or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Security; and neither the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares
of Common Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion, or, except as
expressly herein provided, to comply with any of the covenants of the Company
contained in Article Ten or this Article Thirteen.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 1401 No Recourse.
No recourse under or upon any obligation, covenant or agree
ment of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any
70
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.
71
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CALENERGY COMPANY, INC.
By: /s/ Steven A McArthur
----------------------------
Name: Steven A. McArthur
Title: Senior Vice President
Attest:
/s/ Steven A. McArthur
- ----------------------
Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Bryon Merino
----------------------------
Name: Bryon Merino
Title: Assistant Treasurer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of April, 1996 before me personally came
Steven A. McArthur, to me known, who, being by me duly sworn, did depose and
say that he/she is the General Counsel/Senior Vice President of CalEnergy
Company, Inc., one of the corporations described in and which executed the
foregoing instrument; and that he/she signed his/her name thereto by authority
of the Board of Directors of such corporation.
/s/ Jennifer Avitabile
Notary Public State of New York
No. 01AV5017281
Qualified in New York County
Certificate Filed in New York
County
Commission Expires
Aug. 30, 1997
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of April, 1996 before me personally came
Byron Merino, to me known, who, being by me duly sworn, did depose and say
that he/she is a Assistant Treasurer of The Bank of New York, a corporation
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of such corporation.
/s/ William J. Cassels
Notary Public State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York
County
Commission Expires
May 16, 1996
EXHIBIT A
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[Include Restricted Securities Legend: THIS SECURITY HAS AND ANY COMMON STOCK
(AND RELATED RIGHTS) ISSUED ON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) TO THE COMPA NY, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRANSFER AGENT'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS
SECURITY IS COM PLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT.
]
CALENERGY COMPANY, INC.
6 1/4% Convertible Junior Subordinated
Deferrable Interest Security Due 2016
No._________ $___________
[CUSIP No. _________]
CALENERGY COMPANY, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called "the Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum [indicated on
Schedule A hereof]* [of ______ Dollars]** ($ )
on March 10, 2016.
Interest Payment Dates: March 15, June 15, September 15 and
December 15, commencing June 15, 1996
- --------
* Applicable to Global Securities only.
** Applicable to certificated Securities only.
Regular Record Dates: the close of business on the 15th day
immediately preceding each Interest Payment Date, commencing
May 31, 1996
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be signed manually or by facsimile by its duly authorized officers and a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: _________, ____
CALENERGY COMPANY, INC.
By:________________________
Name:
Title:
[Seal]
Attest:
- ---------------
A-2
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: , THE BANK OF NEW YORK,
as Trustee
By: _______________________
Authorized Signatory
A-3
[FORM OF REVERSE OF SECURITY]
CALENERGY COMPANY, INC.
6 1/4% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2016*
(1) Interest. CalEnergy Company, Inc., a Delaware corpora tion
(the "Company"), is the issuer of this 6 1/4% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2016 (the "Security") limited in aggregate
principal amount to $103,092,800.00 (or $115,463,950.00 if the over-allotment
option is exercised), issued under the Indenture hereinafter referred to. The
Company promises to pay interest on the Securities in cash from April 10, 1996
or from the most recent interest payment date to which interest has been paid
or duly provided for, quarterly (subject to deferral for up to 20 consecutive
quarters as described in Section 3 hereof) in arrears on March 15, June 15,
September 15 and December 15 of each year (each such date, an "Interest
Payment Date"), commencing June 15, 1996, at the rate of 6 1/4% per annum
(subject to increase as provided in Section 13 hereto) plus Additional
Interest, if any, until the principal hereof shall have become due and
payable.
The amount of interest payable for any period will be
computed on the basis of twelve 30-day months and a 360-day year. To the
extent lawful, the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest (without regard to any applicable grace period) at the rate borne
by the Securities, compounded quarterly. Any interest paid on this Security
shall be increased to the extent necessary to pay Additional Interest as set
forth in this Security.
(2) Additional Interest. The Company shall pay to CalEnergy
Capital Trust (and its permitted successors or assigns under the Declaration)
(the "Trust") such additional amounts as may be necessary in order that the
amount of dividends or other distributions then due and payable by the Trust
on the Preferred Securities that at any time remain outstanding in accordance
with the terms thereof shall not be reduced as a result of any additional
taxes, duties and other governmental charges of whatever nature (other than
withholding stamp or transfer taxes) imposed by the United States or any other
taxing authority.
- --------
* All terms used in this Security which are defined in the Indenture or in
the Declaration attached as Annex A thereto shall have the meanings as signed
to them in the Indenture or the Declaration, as the case may be.
A-4
(3) Extension of Interest Payment Period. The Company shall
have the right, at any time during the term of this Security, from time to
time to defer payments of interest by extending the interest payment period of
such Security for up to 20 consecutive quarters (an "Extended Interest Payment
Period") during which Extended Interest Payment Period no interest shall be
due and payable; provided, that no Extended Interest Payment Period may extend
beyond the Maturity Date. To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the
interest payment period, will bear interest thereon at 6 1/4% compounded
quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period,
the Company shall pay all interest then accrued and unpaid on the Securities,
including any Additional Payments that shall be payable to the Holders of the
Securities in whose names the Securities are registered in the Security
Registrar on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the expiration of any Extended Interest
Payment Period, the Company may elect to continue to defer payments of
interest for another consecutive Extended Interest Payment Period; provided,
that any such Extended Interest Payment Period, together with all such
previous and consecutive Extended Interest Payment Periods, shall not exceed
20 consecutive quarters and shall not extend beyond the Maturity Date. Upon
the expiration of any Extended Interest Payment Period and upon the payment of
all Compounded Interest and Additional Interest, if any, then due, the Company
may commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period except at the end thereof.
If the Property Trustee is the sole holder of the Securities
at the time the Company selects an Extended Interest Payment Period, the
Company shall give notice to the Regular Trustees, the Property Trustee and
the Trustee of its selection of such Extended Interest Payment Period at least
one Business Day prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) if the Preferred Securities are listed on the New York
Stock Exchange or other stock exchange or quota tion system, the date the
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities on the record date or the date such distributions are payable, but
in any event not less than ten Busi ness Days prior to such record date.
If the Property Trustee is not the sole holder of the
Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of these Securities and the Trustee
notice of its selection of an Extended Interest Payment Period at least ten
Business Days prior to the earlier of (i) the next succeeding Interest Payment
Date or (ii) if the Preferred Securities are listed on the New York Stock
Exchange or other stock exchange or quotation system, the date the Company is
required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Securities on the record
date or the date such dis tributions are payable, but in any event not less
than two Business Days prior to such record date.
A-5
The quarter in respect of which any notice is given pursuant
to the second and third paragraphs of this Section 3 shall be counted as one
of the 20 quarters permitted in the maximum Extended Interest Payment Period
permitted under the first paragraph of this Section 3.
(4) Method of Payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
regular record date for such interest install ment, which shall be the close
of business on the 15th day immediately preceding each Interest Payment Date
(the "Regular Record Date"), commencing May 31, 1996. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Security
will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that, at the option of the Company, payment
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
(5) Paying Agent and Security Registrar. The Trustee will
act as Paying Agent, Security Registrar and Conversion Agent. The
Company may change any Paying Agent, Security Registrar, co-registrar or
Conversion Agent without prior notice. The Company or any of its
Affiliates may act in any such capacity.
(6) Indenture. The Company issued the Securities under an
indenture, dated as of April 1, 1996 (the "Indenture"), between the Company
and The Bank of New York, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limi tations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by the Trust Indenture Act of 1939 (15
U.S. Code ss.ss. 77aaa-77bbbb) ("TIA") as in effect on the date of the
Indenture. The Securities are subject to, and qualified by, all such terms,
certain of which are summarized hereon, and holders are referred to the
Indenture and the TIA for a statement of such terms. The Securities are
unsecured general obligations of the Company limited to $103,092,800.00
A-6
in aggregate principal amount (or up to $115,463,950.00 if the over-allotment
option is exercised) and subordinated in right of payment to all existing and
future Senior Indebtedness of the Company. No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed or to convert this
Security as provided in the Indenture.
1 Optional Redemption. The Securities are redeemable at the
Company's option at any time and from time to time after April 9, 1999, upon
not less than 20 or more than 60 days' notice, at a Redemption Price equal to
$52.08 per $50 principal amount of the Securi ties plus any accrued and unpaid
interest, including Additional Payments, if any, to the Redemption Date, if
redeemed on or before April 9, 2000, and at the following redemption prices
per $50 principal amount of the Securities, if redeemed during the 12-month
period ending April 9:
Price per $50
Principal
Year Amount
---- -----------
2001.................................... $51.74
2002.................................... 51.39
2003.................................... 51.04
2004.................................... 50.69
2005.................................... 50.35
and thereafter at $50 per $50 principal amount of the Securities plus, in each
case, accrued and unpaid interest, including Additional Payments, if any, to
the Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on the Interest Payment Date). On or after
the Redemption Date, interest will cease to accrue on the Securities, or
portion thereof, called for redemption.
(8) Optional Redemption Upon Tax Event. The Securities are subject to
redemption in whole, but not in part, at any time within 90 days, if a Tax
Event (as defined in the Declaration) shall occur and be continuing, at a
redemption price equal to $50 per $50 principal amount thereof plus accrued
but unpaid interest, including Additional Payments, if any, to the Redemption
Date; provided, however, that if, at the time there is available to the
Company or the Trust the opportunity to eliminate, within such 90-day period,
the Tax Event by taking some ministerial action, including but not limited to
filing a form or making an election, or pursuing some other similar reasonable
measure, which, in the sole judgment of the Company, has or will cause no
adverse effect on the Trust or the Company or involves or will involve no
material cost, then the Company or the Trust shall pursue such measure in lieu
of redemption. Any redemption pursuant to this Section 8 will be made upon not
less than 30 nor more than 60 days' notice.
(9) Notice of Redemption. Notice of redemption will be mailed
at least 30 (or in the case of a redemption at the election of the
Company, at least 20) but not more than 60 days before the Redemption
A-7
Date to each Holder of the Securities to be redeemed at his address of record.
The Securities in denominations larger than $50 may be redeemed in part but
only in integral multiples of $50. In the event of a re demption of less than
all of the Securities, the Securities will be chosen for redemption by the
Trustee in accordance with the Indenture. On and after the Redemption Date,
interest ceases to accrue on the Securities or portions of them called for
redemption.
If this Security is redeemed subsequent to a Regular Record
Date with respect to any Interest Payment Date specified above and on or prior
to such Interest Payment Date, then any accrued interest will be paid to the
person in whose name this Security is registered at the close of business on
such record date.
(10) Mandatory Redemption. The Securities will mature on March
10, 2016, and may be redeemed, in whole or in part, at any time after April 9,
1999 or at any time in certain circumstances upon the occurrence of a Tax
Event. Upon the repayment of the Securities, wheth er at maturity or upon
redemption, the proceeds from such repayment or payment shall simultaneously
be applied to redeem Trust Securities having an aggregate liquidation amount
of the Securities so repaid or redeemed at the applicable redemption price
together with accrued and unpaid distributions through the date of redemption;
provided, that holders of the Trust Securities shall be given not less than 30
nor more than 60 days notice of such redemption. Upon the repayment of the
Securities at maturity or upon any acceleration, earlier redemption or
otherwise, the proceeds from such repayment will be applied to redeem the
Preferred Securities, in whole, upon not less than 30 nor more than 60 days'
notice. There are no sinking fund payments with respect to the Securities.
(11) Subordination. The payment of the principal of, interest
on or any other amounts due on the Securities is subordinated in right of
payment to all existing and future Senior Indebtedness (as defined below) of
the Company, as described in the Indenture. Each holder, by accepting a
Security, agrees to such subordination and autho rizes and directs the Trustee
on its behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
Senior Indebtedness shall mean in respect of the Company (i)
the principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii)
all capital lease obligations of such obligor, (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such obligor and all obligations of such
obligor under any title reten tion agreement (but excluding trade accounts
payable arising in the ordinary course of business), (iv) all obligations of
such obligor for the reimbursement of any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction, (v) all
obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise, and (vi) all obligations of the type referred
to in clauses (i) through (v) above of other persons secured by
A-8
any lien on any property or asset of such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any such indebtedness
issued after the date of original issuance of the Securities that is by its
terms subordinated to or pari passu with the Securities and (2) any
indebtedness (including all other debt securities and guarantees in respect of
those debt securities) initially issued to any other trust, or a trustee of
such trust, partnership, or other entity affiliated with the Company that is,
directly or indirectly, a financing vehicle of the Company (a "Financing
Entity") in connection with the issuance by such Financing Entity of preferred
securities or other securities which by their terms rank pari passu with, or
junior to, the Preferred Securities.
(12) Conversion. The Holder of any Security has the right,
exercisable at any time prior to the close of business (New York time) on the
date of the Security's maturity, to convert the principal amount thereof (or
any portion thereof that is an integral multiple of $50) into shares of Common
Stock at an initial conversion rate of 1.6728 shares of Common Stock for each
Security (equivalent to a conversion price of $29.89 per share of Common Stock
of the Company), subject to adjustment under certain circumstances, except
that if a Security is called for redemption, the conversion right will
terminate at the close of business on the Redemption Date.
To convert a Security, a Holder must (1) complete and sign a
conversion notice substantially in the form attached hereto, (2) surrender the
Security to a Conversion Agent, (3) furnish appropriate endorsements or
transfer documents if required by the Security Registrar or Conversion Agent
and (4) pay any transfer or similar tax, if re quired. Upon conversion, no
adjustment or payment will be made for interest or dividends, but if any
Holder surrenders a Security for conversion after the close of business on the
Regular Record Date for the payment of an installment of interest and prior to
the opening of business on the next Interest Payment Date, then,
notwithstanding such conversion, the interest payable on such Interest Payment
Date will be paid to the registered Holder of such Security on such Regular
Record Date. In such event, such Security, when surrendered for conversion,
need not be accompanied by payment of an amount equal to the interest payable
on such Interest Payment Date on the portion so converted. The number of
shares issuable upon conversion of a Security is determined by dividing the
principal amount of the Security converted by the conver sion price in effect
on the Conversion Date. No fractional shares will be issued upon conversion
but a cash adjustment will be made for any fractional interest. The
outstanding principal amount of any Security shall be reduced by the portion
of the principal amount thereof converted into shares of Common Stock.
(13) Registration Rights. The holders of the Preferred
Securities, the Securities and the Guarantee are entitled to the bene fits of
a Registration Rights Agreement, dated as of April 10, 1996, among the Company
and the Initial Purchasers (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Company has agreed for the benefit of
the holders of the Preferred Securities, the Securities and the Guarantee
that, subject to the terms of the Registration Rights Agreement (including,
without limitation, those
A-9
provisions permitting a Suspension (as defined therein)) (i) it will, at its
cost, as promptly as reasonably practicable, prepare and file a Shelf
Registration Statement (as defined in the Registration Rights Agreement) with
the Commission with respect to resales of the Preferred Securities, together
with the Securities, the Guarantee and the related Common Stock issuable upon
conversion thereof, (ii) it will use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission on or
prior to October 7, 1996 and (iii) it will use its reasonable best efforts to
keep such Shelf Regis tration Statement continuously effective under the
Securities Act of 1933, as amended, until the third anniversary of the date of
the effec tiveness of the Shelf Registration Statement or such earlier date as
is provided in the Registration Rights Agreement. The Company and the Trust
agree that from and after the date on which any Registration Default (as
defined below) occurs, the per annum interest rate on the Securities will
increase by 50 basis points (.50%). Such increase will remain in effect from
and including the date on which any such Registra tion Default shall occur (or
be deemed to occur as described below) to but excluding the date on which all
Registration Defaults have been cured (or have been deemed to be cured as
described below), on which date the interest rate on the Securities will
revert to the interest rate originally borne by the Securities.
"Registration Default" shall mean any of the following
events:
(i) on or prior to October 7, 1996, the Registrable
Securities (as defined in the Registration Rights Agreement) are not
the subject of a Shelf Registration Statement which has become
effective;
(ii) the Registrable Securities are the subject of
a Shelf Registration Statement which was effective but which has
ceased to be effective for any reason prior to the end of the Shelf
Registration Period (as defined in the Registration Rights
Agreement);
(iii) the occurrence of a Suspension (as defined in
the Registration Rights Agreement); or
(iv) the occurrence of an event contemplated by
paragraph 3(c)(2)(iii) of the Registration Rights Agreement (an
"Amendment Event");
provided, however, that if the Registration Default consists of the occurrence
of any event contemplated by clause (iii) or (iv) above, then such
Registration Default shall not be deemed to have occurred until the expiration
of 30 Business Days after the date of the occurrence of such Suspension or
Amendment Event, provided that (a) the Trust and the Company thereafter
reasonably promptly comply with the requirements of paragraph 3(i) of the
Registration Rights Agreement, if applicable, and (b) in the case of such
Amendment Event resulting from an action taken by the Company or the Trust,
such action was taken in good faith; and provided, further, that a
Registration Default shall not constitute a default or Event of Default
hereunder.
A-10
A Registration Default shall be deemed to have been cured
and cease to exist on the date subsequent to the occurrence of such
Registration Default on which:
(x) in the case of a Registration Default described
in clause (i) or (ii) above, the Shelf Registration Statement
covering such Registrable Securities shall become effective; or
(y) in the case of a Registration Default described
in clause (iii) or (iv) above, upon the Company and the Trust taking
action to notify the Holders (for purposes of this clause (y), as
that term is defined in the Registration Rights Agreement) of the
Registrable Securities that such Suspension or Amendment Event has
ended. For purposes of this clause (y), taking action to notify
Holders shall be deemed sufficient when notice is first deposited in
first class mail or delivered to a courier service or filed with the
SEC or publicly disseminated by press release or other release to a
news reporting service.
(14) Registration, Transfer, Exchange and Denominations. As
provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in New York, New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $50 and integral multiples thereof. No service
charge shall be made for any such registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection there with. Prior to due presentment
of this Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary. In the event of
redemption or conversion of this Security in part only, a new Security or
Securities for the unredeemed or unconverted portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
(15) Persons Deemed Owners. Except as provided in Section
4 hereof, the registered Holder of a Security may be treated as its
owner for all purposes.
(16) Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee and
the Paying Agent shall pay the money back to the Company at its written
request. After that, holders of Securities entitled to the money must
look to the Company for payment unless an abandoned property law
A-11
designates another Person and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
(17) Defaults and Remedies. The Securities shall have the
Events of Default as set forth in Section 501 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the holders of at least
25% in aggregate principal amount of the then outstanding Securities by notice
to the Company and the Trustee may declare all the Securities to be due and
payable immediately, except that in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, all unpaid principal and
interest accrued on the Securities shall become due and payable immediately
without further action or notice.
The holders of a majority in principal amount of the
Securities then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due
solely because of the acceleration. Holders may not enforce the Indenture or
the Securities except as provided in the Indenture. Subject to certain
limitations, holders of a majority in principal amount of the then outstanding
Securities issued under the Indenture may direct the Trustee in its exercise
of any trust or power. The Company must furnish annually compliance
certificates to the Trustee. The above description of Events of Default and
remedies is qualified by reference to, and subject in its entirety by, the
more complete description thereof contained in the Indenture.
(18) Amendments, Supplements and Waivers. The Indenture
permits, with certain exceptions as therein provided, the amendment thereof
and the modification of the rights and obligations of the Company and the
rights of the Holders of the Securities under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securi ties at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
(19) Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity may become the owner or pledgee of the
Securities and may otherwise deal with the Company or an Affiliate with the
same rights it would have, as if it were not Trustee, subject to certain
limitations provided for in the Indenture and in the TIA.
Any Agent may do the same with like rights.
A-12
(20) No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder of the Securities by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
(21) Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THEREOF.
(22) Authentication. The Securities shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee
or an authenticating agent.
(23) Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Cus todian), and U/G/M/A
(= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of the Securities
upon written request and without charge a copy of the Indenture.
Request may be made to:
CalEnergy Company, Inc.
302 South 36th Street, Suite 400
Omaha, Nebraska 68131
Attention of: General Counsel
A-13
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ----------------------------------------------
agent to transfer this Security on the books of the Company. The agent
may substitute another to act for him.
Your Signature: ---------------------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Date: ---------------------------
Signature Guarantee:* ------------------
[Include the following if the Security bears a Restricted Securities
Legend --
In connection with any transfer of any of the Securities evidenced by this
certificate, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW
(1) |_| exchanged for the undersigned's own
account without transfer; or
(2) |_| transferred pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
(3) |_| transferred pursuant to and in
compliance with Regulation S under the Securities Act
of 1933; or
- --------
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange.
A-14
(4) |_| transferred pursuant to another
available exemption from the registration requirements
of the Securities Act of 1933; or
(5) |_| transferred pursuant to an effective
Shelf Registration Statement (as defined in Section
1007 of the Indenture).
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3) or (4)
is checked, the Trustee may require, prior to registering any such transfer of
the Securities such legal opinions, certifications and other information as
the Company has reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act; provided, further, that after the date
that a Shelf Registration Statement becomes effective and so long as such
Shelf Registration Statement continues to be effective, the Trustee may only
permit transfers for which box (5) has been checked.
----------------------------
Signature
Signature Guarantee:*
- -------------------------------- ---------------------------
]
Signature must be guaranteed Signature
- ------------------------------------------------------------------------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:------------------------- -----------------------------------------
NOTICE: To be executed by an executive officer]
- --------
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange.
A-15
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security shall
be $__________. The following increases or decreases in the principal amount
of this Global Security have been made:
========================================================================================================================
Date Made Amount of increase
in Principal Amount Principal Amount of
of this Global Secu Amount of decrease this Global Security Signature of
rity including upon in Principal Amount following such authorized officer
exercise of over- of this Global Secu decrease or increase of Trustee or
allotment option rity Securities Custodian
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
========================================================================================================================
A-16
ELECTION TO CONVERT
To: CalEnergy Company, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below
designated, into Common Stock of CALENERGY COMPANY, INC. in accordance with
the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Any holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Security, agrees to be
bound by the terms of the Registration Agreement relating to the Common Stock
issuable upon conversion of the Securities.
Date: ____________, ____
in whole __
Portions of Security to be converted ($50 or integral multiples
thereof): $_________________
--------------------------------------------
Signature
(for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
--------------------------------------------
--------------------------------------------
--------------------------------------------
Signature Guarantee:*
- --------
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange.
A-17
ANNEX I
AMENDED AND RESTATED DECLARATION OF TRUST
(See Exhibit 4.2)