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EXHIBIT 4.3
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NEWELL CO.
to
THE CHASE MANHATTAN BANK,
as Trustee
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF DECEMBER 12, 1997
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5 1/4% CONVERTIBLE SUBORDINATED DEBENTURES
DUE DECEMBER 1, 2027
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Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Junior Convertible
Subordinated Indenture whether or not physically contained therein) and the
Junior Convertible Subordinated Indenture, dated as of December 12, 1997.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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Section 310(a)(1), (2) and (5).............................................................6.9
(a)(3)..................................................................Not Applicable
(a)(4)..................................................................Not Applicable
(b)..........................................................................6.8, 6.10
(c).....................................................................Not Applicable
Section 311(a)............................................................................6.13
(b)...............................................................................6.13
(b)(2)..........................................................................7.3(a)
Section 312(a).............................................................................7.1
........................................................................7.2(a), 7.2(b)
(c).............................................................................7.2(c)
Section 313(a)..................................................................7.3(a), 7.3(b)
(b).............................................................................7.3(a)
(c).............................................................................7.3(a)
(d).............................................................................7.3(c)
Section 314(a)(1), (2),(3) and (4).........................................................7.4
(b).....................................................................Not Applicable
(c)(1).............................................................................1.2
(c)(2).............................................................................1.2
(c)(3)..................................................................Not Applicable
(d).....................................................................Not Applicable
(e)................................................................................1.2
(f).....................................................................Not Applicable
Section 315(a)..........................................................................6.1(a)
(b)................................................................................6.2
(c).............................................................................6.1(b)
(d).............................................................................6.1(c)
(d)(1).......................................................................6.1(a)(1)
(d)(2).......................................................................6.1(c)(2)
(d)(3).......................................................................6.1(c)(3)
(e)...............................................................................5.14
Section 316(a)............................................................................5.12
(a)(1)(B).........................................................................5.13
(a)(2)..................................................................Not Applicable
(b)................................................................................5.8
(c).............................................................................1.4(f)
Section 317(a)(1)..........................................................................5.3
(a)(2).............................................................................5.4
(b)...............................................................................10.3
Section 318(a).............................................................................1.7
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions............................................................1
SECTION 1.2 Compliance Certificate and Opinions...................................10
SECTION 1.3 Forms of Documents Delivered to Trustee...............................11
SECTION 1.4 Acts of Holders.......................................................11
SECTION 1.5 Notices, Etc. to Trustee and Company..................................12
SECTION 1.6 Notice to Holders; Waiver.............................................13
SECTION 1.7 Conflict with Trust Indenture Act.....................................13
SECTION 1.8 Effect of Headings and Table of Contents..............................13
SECTION 1.9 Successors and Assigns................................................13
SECTION 1.10 Separability Clause...................................................13
SECTION 1.11 Benefits of Indenture.................................................13
SECTION 1.12 Governing Law.........................................................14
SECTION 1.13 Non-Business Days.....................................................14
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally.......................................................14
SECTION 2.2 Form of Face of Debenture.............................................14
SECTION 2.3 Form of Reverse of Debenture..........................................15
SECTION 2.4 Additional Provisions Required in Global Debenture....................24
SECTION 2.5 Form of Trustee's Certificate of Authentication.......................24
SECTION 2.6 Initial Issuance to Property Trustee..................................24
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures..................................................25
SECTION 3.2 Denominations.........................................................25
SECTION 3.3 Execution, Authentication, Delivery and Dating........................25
SECTION 3.4 Temporary Debentures..................................................25
SECTION 3.5 Registration, Transfer and Exchange...................................26
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures......................27
SECTION 3.7 Payment of Interest; Interest Rights Preserved........................28
SECTION 3.8 Persons Deemed Owners.................................................29
SECTION 3.9 Cancellation..........................................................29
SECTION 3.10 Computation of Interest...............................................29
SECTION 3.11 Deferrals of Interest Payment Dates...................................29
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SECTION 3.12 Right of Set-off......................................................30
SECTION 3.13 Agreed Tax Treatment..................................................30
SECTION 3.14 CUSIP Numbers.........................................................31
SECTION 3.15 Global Security.......................................................31
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture...............................32
SECTION 4.2 Application of Trust Money............................................33
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default.....................................................34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......36
SECTION 5.4 Trustee May File Proofs of Claim......................................36
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures............37
SECTION 5.6 Application of Money Collected........................................37
SECTION 5.7 Limitation on Suits...................................................38
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.......................................38
SECTION 5.9 Restoration of Rights and Remedies....................................39
SECTION 5.10 Rights and Remedies Cumulative........................................39
SECTION 5.11 Delay or Omission Not Waiver..........................................39
SECTION 5.12 Control by Holders....................................................39
SECTION 5.13 Waiver of Past Defaults...............................................40
SECTION 5.14 Undertaking for Costs.................................................40
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws..............................41
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities...................................41
SECTION 6.2 Notice of Defaults....................................................42
SECTION 6.3 Certain Rights of Trustee.............................................42
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures................43
SECTION 6.5 May Hold Debentures...................................................44
SECTION 6.6 Money Held in Trust...................................................44
SECTION 6.7 Compensation and Reimbursement........................................44
SECTION 6.8 Disqualification; Conflicting Interests...............................44
SECTION 6.9 Corporate Trustee Required; Eligibility...............................45
SECTION 6.10 Resignation and Removal; Appointment of Successor.....................45
SECTION 6.11 Acceptance of Appointment by Successor................................46
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SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business...........47
SECTION 6.13 Preferential Collection of Claims Against Company.....................47
SECTION 6.14 Appointment of Authenticating Agent...................................47
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders.....................49
SECTION 7.2 Preservation of Information: Communications to Holders...............49
SECTION 7.3 Reports by Trustee....................................................49
SECTION 7.4 Reports by Company....................................................50
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms..................50
SECTION 8.2 Successor Corporation Substituted.....................................51
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders....................51
SECTION 9.2 Supplemental Indentures with Consent of Holders.......................52
SECTION 9.3 Execution of Supplemental Indentures..................................53
SECTION 9.4 Effect of Supplemental Indentures.....................................53
SECTION 9.5 Conformity with Trust Indenture Act...................................54
SECTION 9.6 Reference in Debentures to Supplemental Indentures....................54
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest...................................54
SECTION 10.2 Maintenance of Office or Agency..............................................54
SECTION 10.3 Money for Debenture Payments to Be Held in Trust.............................54
SECTION 10.4 Payment of Taxes and Other Claims............................................55
SECTION 10.5 Statement as to Compliance...................................................56
SECTION 10.6 Waiver of Certain Covenants..................................................56
SECTION 10.7 Additional Sums..............................................................56
SECTION 10.8 Additional Covenants.........................................................56
SECTION 10.9 Registration Rights..........................................................57
SECTION 10.10 Payment of Expenses of the Trust.............................................57
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ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee........................................58
SECTION 11.2 Selection of Debentures to Be Redeemed.......................................58
SECTION 11.3 Notice of Redemption.........................................................59
SECTION 11.4 Deposit of Redemption Price..................................................59
SECTION 11.5 Debentures Payable on Redemption Date........................................60
SECTION 11.6 Debentures Redeemed in Part..................................................60
SECTION 11.7 Mandatory Redemption.........................................................61
SECTION 11.8 Optional Redemption..........................................................61
SECTION 11.9 Exchange of Trust Securities for Debentures..................................61
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt........................................62
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc...............................62
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of Debentures.................63
SECTION 12.4 No Payment When Senior Debt in Default.......................................64
SECTION 12.5 Payment Permitted If No Default..............................................64
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt..............................65
SECTION 12.7 Provisions Solely to Define Relative Rights..................................65
SECTION 12.8 Trustee to Effectuate Subordination..........................................65
SECTION 12.9 No Waiver of Subordination Provisions........................................65
SECTION 12.10 Notice to Trustee............................................................65
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating Agent...............66
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt.............................66
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights..........................................................66
SECTION 12.14 Article Applicable to Paying Agents..........................................66
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment..............................66
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights............................................................67
SECTION 13.2 Conversion Procedures........................................................67
SECTION 13.3 Expiration of Conversion Rights..............................................70
SECTION 13.4 Conversion Price Adjustments.................................................70
SECTION 13.5 Fundamental Change...........................................................74
SECTION 13.6 Notice of Adjustments of Conversion Price....................................75
SECTION 13.7 Prior Notice of Certain Events...............................................76
SECTION 13.8 Certain Additional Rights....................................................77
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SECTION 13.9 Restrictions on Company Common Stock
Issuable Upon Conversion..............................................77
SECTION 13.10 Trustee Not Responsible for Determining Conversion
Price or Adjustments..................................................78
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of December 12, 1997
between NEWELL CO., a Delaware corporation (the "Company") having its principal
office at Newell Center, 29 East Stephenson Street, Freeport, Illinois 61032,
and THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"), as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 5 1/4% Convertible Subordinated
Debentures (the "Debentures") of substantially the tenor hereinafter provided
which evidence loans made to the Company of the proceeds from the issuance by
Newell Financial Trust I, a Delaware business trust (the "Trust"), of preferred
trust interests in the Trust (the "Preferred Securities") and common interests
in the Trust (the "Common Securities"), and to provide the terms and conditions
upon which the Debentures are to be authenticated, issued and delivered.
All things necessary to make the Debentures, 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
Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purpose of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(d) the words "herein" 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 1.4.
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"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Debentures that is in arrears for more than one interest
payment period or not paid during any Extension Period, which in either case (to
the extent permitted by law) shall accrue at the stated rate per annum specified
or determined as specified in such Debenture and compounded quarterly.
"Additional Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means the sum of any additional taxes, duties and
other governmental charges to which the Trust has become subject from time to
time as a result of a Tax Event.
"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; provided, however, that an Affiliate of the
Company shall be deemed not to include the Trust to which Debentures have been
issued. 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.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of Company Common Stock receive only cash, the
amount of cash received by the holder of one share of Company Common Stock and
(ii) in the event of any other Non-Stock Fundamental Change or any Common Stock
Fundamental Change, the average of the Closing Prices for Company Common Stock
during the ten trading days prior to and including the record date for the
determination of the holders of Company Common Stock entitled to receive such
securities, cash, or other property in connection with such Non-Stock
Fundamental Change or Common Stock Fundamental Change or, if there is no such
record date, the date upon which the holders of Company Common Stock shall have
the right to receive such securities, cash, or other property, in each case as
adjusted in good faith by the Company to appropriately reflect any of the events
referred to in Section 13.4.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
"Board of Directors" means either the board of directors of the Company
or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, 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 Sunday or a day on
which banking institutions in the City of New York are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under the
Trust Agreement, is closed for business.
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"Closing Price" means on any day the reported last sale price on such
day or, in case no sale takes place on such day, the average of the reported
closing bid and asked prices in each case on the NYSE Consolidated Transactions
Tape or, if the stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which such 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 NYSE member firm, selected by the Trustee for that purpose.
"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 on such date.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Company Common Stock
consists of common stock that for each of the ten consecutive trading days prior
to the record date for the determination of the holders of Company Common Stock
entitled to receive such common stock or, if there is no such record date, the
date on which the holders of Company Common Stock shall have the right to
receive such common stock, has been admitted for listing or admitted for listing
subject to notice of issuance on a national securities exchange or quoted on the
Nasdaq National Market; provided, however, that a Fundamental Change shall not
be a Common Stock Fundamental Change unless either (i) the Company continues to
exist after the occurrence of such Fundamental Change and the outstanding
Preferred Securities continue to exist as outstanding Preferred Securities or
(ii) not later than the occurrence of such Fundamental Change, the outstanding
Preferred Securities are converted into or exchanged for shares of convertible
preferred stock of an entity succeeding to the business of the Company or a
subsidiary thereof, which convertible preferred stock has powers, preferences,
and relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Preferred
Securities.
"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 Common Stock" means common stock, par value $1.00, of the
Company.
"Company Request" and "Company Order" means, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board,
its Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 13.2.
"Conversion Date" has the meaning specified in Section 13.2.
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"Conversion Price" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
which office at the date hereof is located at 450 W. 33rd Street, 15th Floor,
New York, New York 10001, Attention: Corporate Trustee Administration.
"Current Market Price" means for any day the last reported sale price,
regular way, on such day of Company Common Stock, or, if no sale takes place on
such day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the NYSE Consolidated Transactions
Tape, or, if Company Common Stock is not listed or admitted to trading on the
NYSE on such day, on the principal national securities exchange on which Company
Common Stock is listed or admitted to trading, if Company Common Stock is listed
on a national securities exchange, or the Nasdaq National Market, or, if Company
Common Stock is not quoted or admitted to trading on such quotation system, on
the principal quotation system on which Company Common Stock may be listed or
admitted to trading or quoted, or, if not listed or admitted to trading or
quoted on any national securities exchange or quotation system, the average of
the closing bid and asked prices of Company Common Stock in the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by any NYSE member firm selected from
time to time by the Board of Directors for that purpose or, if not so available
in such manner, as otherwise determined in good faith by the Board of Directors.
"Debentures" or "Debenture" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person, and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible for or liable, directly or indirectly,
as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or issued in
whole or in part in the form of one or more Global Debentures, the Person
designated as Depositary by the Company (or any successor thereto).
"Dollar" means the currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
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"Events of Default" has the meaning specified in Article 5.
"Expiration Time" has the meaning specified in Section 13.4(e).
"Extension Period" has the meaning specified in Section 3.11.
"Fundamental Change" means the occurrence of any Transaction or event in
connection with a plan pursuant to which all or substantially all of Company
Common Stock shall be exchanged for, converted into, acquired for, or constitute
solely the right to receive securities, cash, or other property (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization, or otherwise); provided, that,
in the case of a plan involving more than one such Transaction or event, for
purposes of adjustment of the conversion price, such Fundamental Change shall be
deemed to have occurred when substantially all of Company Common Stock shall be
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property, but the adjustment shall be based
upon consideration that a holder of Company Common Stock received in such
Transaction or event as a result of which more than 50% of Company Common Stock
shall have been exchanged for, converted into, or acquired for or constitute
solely the right to receive securities, cash, or other property.
"Global Debenture" means a Debenture in the form prescribed in Section
2.4 evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means the guarantee by the Company of distributions on the
Preferred Securities of the Trust to the extent provided in the Guarantee
Agreement, substantially in the form attached hereto as Annex C, as amended from
time to time.
"Holder" means a Person in whose name a Debenture is registered in the
Securities 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.
"Initial Purchasers" with respect to the Preferred Securities, means
Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated, Robert W. Baird & Co.
Incorporated, Bear, Stearns & Co. Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
"Interest Payment Date" means as to the Debentures the Stated Maturity
of an installment of interest on such Debentures.
"Interest Rate" means the rate of interest specified or determined as
specified in each Debenture as being the rate of interest payable on such
Debenture.
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"Investment Company Event" means, in respect of the Trust, the receipt
by the Property Trustee, on behalf of the Trust of an Opinion of Counsel,
rendered by a law firm having a national tax and securities practice (which
opinion shall not have been rescinded by such law firm), to the effect that, as
a result of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" that is required to be registered under the 1940 Act,
which Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities of the Trust.
"Junior Subordinated Payment" has the meaning specified in Section 12.2.
"Liquidated Damages" has the meaning specified in the form of reverse of
Debenture set forth in Section 2.3.
"Maturity" when used with respect to the Debentures, means the date on
which the principal of the Debentures become due and payable as herein provided,
whether at the Stated Maturity or by declaration of acceleration, call or
redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Non Book-Entry Preferred Securities" has the meaning specified in
Section 3.15.
"Non-Stock Fundamental Change" means any Fundamental Change other than a
Common Stock Fundamental Change.
"Notice of Conversion" means the notice given by a Holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Securities for Debentures and to convert such Debentures into
Company Common Stock on behalf of such holder.
"Notice of Default" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by (i) the Chairman,
Chief Executive Officer, President or a Vice President, and by (ii) the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, the Trust, or the Trustee, but who may be an employee
thereof, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all Debentures
theretofore authenticated and delivered under this Indenture, except:
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(i) Debentures theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary amount
has been theretofore irrevocably deposited with the Trustee or any
Paying Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Section 3.6, or which have been converted into Company
Common Stock pursuant to Section 13.1, unless proof satisfactory to the
Trustee is presented that any Debentures are held by Holders in whose
hands such Debentures are valid, binding and legal obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be fully
protected in conclusively relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Debentures 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 Debentures and that the pledgee
is not the Company or any other obligor upon the Debentures or any Affiliate of
the Company or such other obligor. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Debentures, if any, known by the Company to be owned or held by
or for the account of the Company, or any other obligor on the Debentures or any
Affiliate of the Company or such obligor, and, subject to the provisions of
Section 6.1, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Debentures not listed therein are Outstanding for the purpose of any such
determination.
"Paying Agent" means the Trustee or any Person authorized by the Company
to pay the principal of or interest on any Debentures on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture, and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 12.2.
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"Property Trustee" means, in respect of the Trust, the commercial bank
or trust company identified as the "Property Trustee" in the Trust Agreement,
solely in its capacity as Property Trustee of the Trust under the Trust
Agreement and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as therein provided.
"Purchase Agreement" means the Purchase Agreement dated December 8, 1997
by and among Newell Financial Trust I, Newell Co. and the Initial Purchasers.
"Purchased Shares" has the meaning specified in Section 13.4(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change the average of the Closing Prices for common stock received
in such Common Stock Fundamental Change for the ten consecutive trading days
prior to and including the record date for the determination of the holders of
common stock entitled to receive such common stock or if there is no such record
date, the date on which the holders of common stock shall have the right to
receive such common stock, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 13.4.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section 11.3(b).
"Reference Date" has the meaning specified in Section 13.4(c).
"Reference Market Price" initially means $27.25 (which is an amount
equal to 66 2/3% of the reported last sale price for Company Common Stock on the
NYSE Consolidated Transactions Tape on December 8, 1997), and in the event of
any adjustment of the Conversion Price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Regular Record Date" means for the interest payable on any Interest
Payment Date the fifteenth day (whether or not a Business Day) next preceding
such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Trustee's Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Indenture, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Preferred Securities" means all Preferred Securities
required to bear any restricted securities legend pursuant to the Trust
Agreement.
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"Restricted Securities" means all the Debentures required pursuant to
Section 2.6 to bear a Restricted Securities Legend.
"Restricted Securities Legend" has the meaning specified in Section 2.6.
"Rights" has the meaning specified in Section 13.2(g).
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company, whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures, provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which when incurred and, without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the
Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt to any
employee of the Company, (d) any liability for taxes, (e) Debt or other monetary
obligations to trade creditors created or assumed by the Company or any of its
Subsidiaries in the ordinary course of business in connection with the obtaining
of goods, materials or services and (f) the Debentures.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to the Debentures or any
installment of principal thereof or interest thereon means the date specified in
the Debentures as the fixed date on which the principal of the Debentures or
such installment of interest is due and payable.
"Stockholder Rights Agreement" means the Rights Agreement dated as of
October 20, 1988 by and between Newell Co. and First Chicago Trust Company of
New York (formerly known as Morgan Shareholder Services Trust Company) as Rights
Agent, as amended from time to time, or any successor to, or replacement of,
such Rights Agreement.
"Subsidiary" means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the outstanding shares of voting stock. For purposes
of this definition, "voting stock" means stock which has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Property Trustee on behalf of the
Trust of an Opinion of Counsel, rendered by a law firm having a national tax and
securities practice (which opinion shall
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not have been rescinded by such law firm), to the effect that, as a result of
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
issuance of the Preferred Securities of the Trust and does not pertain to the
use of the proceeds of the issuance of the Debentures, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
thereof, subject to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Company on
the Debentures is not, or within 90 days of the date thereof, will not be,
deductible, in whole or in part, for United States Federal income tax purposes
or (iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Transaction" has the meaning specified in Section 13.5(a).
"Trust" has the meaning specified in the first recital of this
Indenture.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, as amended from
time to time.
"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
or include each Person who is then a Trustee hereunder if at any time there is
more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C.ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture.
"Trust Securities" means the Common Securities and Preferred Securities.
"Vice President" when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president."
SECTION 1.2 Compliance Certificate and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent (including covenants,
compliance with which constitutes a condition precedent), if any, provided for
in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which constitute a
condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished. Every certificate or opinion with
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respect to compliance with a condition or covenant provided for in this
Indenture (other than the certificates provided pursuant to Section 10.5) shall
include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Forms 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 matters upon which his certificate
or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous. Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject
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to Section 6.1) conclusive in favor of the Trustee and the Company and
any agent of the Trustee or 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 the certificate of any 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 Person acting in
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Debentures shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debenture shall
bind every future Holder of the same Debenture and the Holder of every
Debenture issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done 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 Debenture.
(f) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to take any
action under this Indenture by vote or consent. Except as otherwise
provided herein, such record date shall be the later of 30 days prior to
the first solicitation of such consent or vote or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 7.1
prior to such solicitation. If a record date is fixed, those persons who
were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or
not such persons continue to be Holders after such record date.
(g) Without limiting the foregoing, a Holder entitled hereunder
to give or take any such action with regard to any particular Debenture
may do so with regard to all or any part of the principal amount of such
Debenture or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any different part
of such principal amount.
SECTION 1.5 Notices, Etc. to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(a) 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,
or
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(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.1 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6 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 the address of such
Holder as it appears in the Securities Register on the date such notice is
mailed, which shall be not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.7 Conflict with Trust Indenture Act. If any provision of this
Indenture 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 former provision shall be deemed to apply.
SECTION 1.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10 Separability Clause. In case any provision in this
Indenture or in the Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or in the
Debentures, express or implied, shall give to any Person, other than the parties
thereto, any Paying Agent and their successors and assigns and the Holders of
the Debentures, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
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SECTION 1.12 Governing Law. This Indenture and the Debentures shall be
governed by and construed in accordance with the laws of the State of New York
without regard to its principles of conflicts of laws.
SECTION 1.13 Non-Business Days. Except as otherwise provided in Section
11.8, in any case where any Interest Payment Date, Redemption Date, or Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Debentures) payment of interest or
principal payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date or Redemption
Date or Stated Maturity.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally. The Debentures and the Trustee's
certificate of authentication shall be in substantially the forms sets forth in
this Article and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debentures,
as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Debentures may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Debentures may be
listed, all as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
SECTION 2.2 Form of Face of Debenture.
5 1/4% Convertible Subordinated Debenture due December 1, 2027
No. 1 $
Newell Co., a corporation organized and existing under the laws of
Delaware (the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, the principal sum of
on December 1, 2027 and to pay interest on said principal sum from December 12,
1997 or from the most recent interest payment date (each such date, an "Interest
Payment Date") on which interest has been paid or duly provided for, quarterly
plus Additional Interest, if any until the principal hereof is paid or duly
provided for or made
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available for payment subject to deferral as set forth herein in arrears on
March 1, June 1, September 1 and December 1 of each year, commencing March 1,
1998 at the rate of 5 1/4% per annum, until the principal hereof shall have
become due and payable.
Reference is hereby made to the further provisions of this Debenture 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 Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
By:_____________________________
SECTION 2.3 Form of Reverse of Debenture. This Debenture is one of a
duly authorized issue of Debentures of the Company (the "Debentures") limited to
the aggregate principal amount of $515,465,000, issued and to be issued under a
Junior Convertible Subordinated Indenture, dated as of December 12, 1997 (the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Debentures, and of the terms upon which the Debentures are, and
are to be, authenticated and delivered. All terms used in this Debenture that
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. For periods less than a full
month, interest shall be computed on the actual number of elapsed days over 360
days. In the event that any date on which interest is payable on this Debenture
is not a Business Day, then payment of the interest 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) with the same force and effect as if
made on the date the payment was originally payable. A "Business Day" shall mean
any day other than a Saturday or a Sunday, or a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee, or the principal office of the Property Trustee under the Trust
Agreement is closed for business. The interest installment 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 Debenture
(or one or more Predecessor Debentures, as defined in the Indenture) is
registered at the close of business on the Regular Record Date, for such
interest installment which shall be the date which is the Business Day next
preceding such Interest Payment Date. Any such interest
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installment 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 Debenture (or one or more Predecessor Debentures)
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 Debentures 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 Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of such
Debenture for up to 20 consecutive quarters with respect to each deferral period
(each such deferral period, an "Extension Period"), during which periods the
Company shall have the right not to make payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest and Liquidated Damages, if
any, thereon to the extent permitted by applicable law); provided that during
any such Extension Period, the Company will not, and will not permit any
Subsidiary to (a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock or (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (i) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (ii)
redemptions or purchases of any rights pursuant to the Company's Stockholder
Rights Agreement and the declaration of a dividend of such rights or the
issuance of preferred stock under such plans in the future, (iii) payments under
the Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its directors,
officers or employees, (v) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one series or class of the
Company's capital stock for another series or class of the Company's capital
stock and (vi) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged). Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period, provided that no Extension Period shall exceed 20 consecutive quarters
or extend beyond the Stated Maturity of this Debenture. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Trustee, the Property Trustee and the Administrative
Trustees notice of its selection of an Extension Period at least one Business
Day prior to the earlier of (i) the record date for the date the distributions
on the Preferred Securities (or if no Preferred Securities are outstanding, for
the date interest on the Debentures) would have been payable except for the
election to begin such Extension Period or (ii) the date the Property Trustee of
the Newell Financial Trust I is (or if no Preferred Securities are outstanding,
the Debenture Trustee is) required to give notice to NYSE or other applicable
self-regulatory organizations or to holders of such Preferred
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Securities (or, if no Preferred Securities are outstanding, to the Holders of
such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made [INSERT, IF A GLOBAL SECURITY IS ISSUED - TO THE
DEPOSITARY TRUST COMPANY OR ITS NOMINEE] [INSERT IF SECURITIES IN DEFINITIVE
FORM ARE ISSUED - AT THE OFFICE OR AGENCY OF THE PAYING AGENT MAINTAINED FOR
THAT PURPOSE IN THE UNITED STATES], 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 (a) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register or (b)
by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Debt (as defined in the Indenture), and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
At any time on or after December 1, 2001, the Company may, at its
option, subject to the terms and conditions of Article 11 of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, at the
Redemption Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture shall
be exchangeable for Preferred Securities in accordance with Section 11.9 of the
Indenture or, in certain circumstances, redeemable by the Company in accordance
with Section 11.8 of the Indenture.
Subject to the terms and conditions set forth in Article 13 of the
Indenture, this Debenture is convertible, at the option of the Holder, hereof
into shares of Company Common Stock.
If an Event of Default shall occur and be continuing, the principal of
the Debentures may be declared due and payable in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
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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 Debentures to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Debentures. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Debentures at the time Outstanding, on behalf of the Holders of
all Debentures, 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 shall be conclusive and binding upon
the Holder of this Debenture and upon all future Holders of this Debenture and
of any Debenture issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an
Event of Default shall occur and be continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, if an Event of Default shall
occur and be continuing, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Debentures fail to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then outstanding
shall have such right by a notice in writing to the Company and the Trustee; and
upon any such declaration such principal amount (or specified amount) of and the
accrued interest (including any Additional Interest) on all the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Debentures shall remain
subordinated to the extent provided in Article 12 of the Indenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
The holders of the Preferred Securities, the Debentures issuable in
respect of the Preferred Securities, the shares of Company Common Stock issuable
upon conversion of the Preferred Securities and the Debentures, and the
Guarantee (collectively, the "Registrable Securities") are entitled to the
benefits of a Registration Rights Agreement, dated as of December 12, 1997,
among Newell Financial Trust I, 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 Registrable Securities
that (i) it will, at its cost, use its best efforts within 90 days after the
date of original issuance of the Registrable Securities, to file a shelf
registration statement (the "Shelf Registration Statement") with the Commission
with respect to the resales of the Registrable Securities, (ii) it will use its
best efforts to cause such Shelf Registration Statement to be declared effective
by the Commission within 180 days after the date of issuance of the Registrable
Securities and (iii) it will use its best efforts to maintain such Shelf
Registration Statement continuously effective under the Securities Act until two
years after the date of original issuance of the Preferred Securities (or such
earlier date as the holders of Registrable Securities are able to sell all
Registrable Securities immediately without restriction, whether pursuant to Rule
144(k) under the Securities Act or any successor rule thereto or otherwise) (the
"Effectiveness
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Period".) The Trust and the Company will be permitted to suspend the use of the
prospectus (which is a part of the Shelf Registration Statement) in connection
with sales of Registrable Securities by holders during certain periods of time
under certain circumstances relating to pending corporate developments relating
to the Company and public filings with the Commission and similar events.
If (i) on or prior to 90 days following the date of original issuance of
the Registrable Securities, a Shelf Registration Statement has not been filed
with the Commission, or (ii) on or prior to the 180th day following the original
issuance of the Registrable Securities, such Shelf Registration Statement has
not been declared effective (each such event a "Registration Default"),
additional interest ("Liquidated Damages") will accrue on the Debentures and,
accordingly, additional distributions will accrue on the Preferred Securities,
from and including the day following such Registration Default until such time
as such Shelf Registration Statement is filed or such Shelf Registration
Statement is declared effective, as the case may be. Liquidated Damages will be
paid quarterly in arrears (subject to the Company's ability to defer payment of
Liquidated Damages during any Extension Period), with the first quarterly
payment due on the first Interest Payment Date following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per annum equal to
an additional 0.25% of the principal amount or liquidation amount, as
applicable, to and including the 90th day following such Registration Default
and 0.50% thereof from and after the 91st day following such Registration
Default. In the event that during the Effectiveness Period the Shelf
Registration Statement ceases to be effective for more than 90 days, whether or
not consecutive, during any 12-month period then the interest rate borne by the
Debentures and the distribution rate borne by the Preferred Securities will each
increase by an additional 0.50% per annum from the 91st day of the applicable
12-month period such Shelf Registration Statement ceases to be effective until
the earlier of such time as (i) the Shelf Registration Statement again becomes
effective or (ii) the Effectiveness Period expires.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Securities
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Debentures are issuable only in registered form without coupons in
denominations of $50 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations
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therein set forth, Debentures are exchangeable for a like aggregate principal
amount of Debentures of a different authorized denomination, as requested by the
Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States Federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
ASSIGNMENT FORM
To assign this Debenture, 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 Debenture 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:*
-------------------------------------------------
- ----------
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The
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[Include the following if the Debenture bears a Restricted Securities Legend --
In connection with any transfer of any of the Debentures evidenced by this
certificate, the undersigned confirms that such Debentures 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
(4) [ ] transferred pursuant to another available exemption from
the registration requirements of the Securities Act of
1933; or
(5) [ ] transferred pursuant to an effective Registration
Statement under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Debentures 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 in writing and directed the Trustee to require
confirmation 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 under
the Securities Act of 1933 has been filed 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:*
- --------
Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee
programs acceptable to the Trustee.
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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]
- ----------------------------------- ------------------------------------
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 Debenture 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]
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NOTICE OF CONVERSION
To: Newell Co.
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below designated,
into Common Stock of NEWELL CO. in accordance with the terms of the Indenture
referred to in this Debenture, 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 Debenture, agrees to be bound
by the terms of the Registration Rights Agreement relating to Company Common
Stock issuable upon conversion of the Debenture.
Date: ____________, ____
in whole __
Portions of Debenture to be
in part __ 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 an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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SECTION 2.4 Additional Provisions Required in Global Debenture. Any
Global Debenture issued hereunder shall, in addition to the provisions contained
in Sections 2.2 and 2.3 bear a legend in substantially the following form:
"This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5 Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication shall be as follows:**
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Signatory
Dated:"
SECTION 2.6 Initial Issuance to Property Trustee. The Debentures
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:
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON
THEIR CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE TRANSFEROR AND ANY PERSON
ACTING ON BEHALF OF SUCH TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN
- --------
** Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
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EACH CASE, IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS."
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures. The aggregate principal amount of
Debentures which may be authenticated and delivered under this Indenture is
$515,465,000 except for Debentures authenticated and delivered upon registration
of, transfer of, or in exchange for, or in lieu of, other Debentures pursuant to
Sections 3.4, 3.5 or 3.6.
SECTION 3.2 Denominations. The Debentures shall be in registered form
without coupons and shall be issuable in denominations of $50 and any integral
multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating. The
Debentures shall be executed on behalf of the Company by its President or one of
its Vice Presidents under its corporate seal reproduced or impressed thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Debentures may be manual or facsimile.
Debentures 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 Debentures or did not
hold such offices at the date of such Debentures. Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debentures may be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Securities to or upon
Company Order without any further action by the Company. Debentures may be
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("Procedures") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to instructions of the Company or a duly authorized agent,
which instructions shall be promptly confirmed in writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Debenture shall be conclusive evidence,
and the only evidence, that such Debenture has been duly authenticated and
delivered hereunder.
SECTION 3.4 Temporary Debentures. Pending the preparation of definitive
Debentures, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debentures which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other
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34
variations as the officers executing such Debentures may determine, as evidenced
by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at the office
or agency of the Company designated for the purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Debentures,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debentures of authorized
denominations. Until so exchanged, the temporary Debentures shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debentures.
SECTION 3.5 Registration, Transfer and Exchange. The Company shall cause
to be kept at the Corporate Trust Office of the Trustee a register in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and of transfers of Debentures. Such
register is herein sometimes referred to as the "Securities Register." The
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Debentures and transfers of Debentures as herein provided.
Upon surrender for registration or transfer of any Debenture at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Debentures surrendered upon
such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange shall
(if so required by the Company or the Securities Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Debentures, 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
transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall be
exchangeable pursuant to this Section 3.5 for Debentures registered in the names
of Persons other than the Depositary for such Debenture or its nominee only if
(a) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Debenture, and the Company shall not
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35
have appointed a successor depositary within 90 days after such notice, (b) at
any time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and the Company shall not have
appointed a successor depositary within 90 days, (c) the Company executes and
delivers to the Trustee a Company Order that the Global Debenture shall be so
exchangeable or (d) there shall have occurred and be continuing an Event of
Default. The Global Debenture shall be exchangeable for Debentures registered in
such names as such Depositary shall direct.
Notwithstanding any other provisions in this Indenture, the Global
Debenture may not be transferred except as a whole by the Depositary with
respect to the Global Debenture to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Debenture
during a period beginning at the opening of business 15 days before the day of
selection for redemption of Debentures pursuant to Article 11 and ending at the
close of business on the day of mailing of notice of redemption or (b) to
transfer or exchange any Debenture so selected for redemption in whole or in
part, except, in the case of any Debenture to be redeemed in part, any portion
thereof not to be redeemed.
The Debentures 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 Debentures to the
holders of the Preferred Securities in accordance with the Trust Agreement, the
Company and the Trustee shall enter into a supplemental indenture pursuant to
Section 9.1(h) to provide for transfer procedures and restrictions with respect
to the Debentures substantially similar to those contained in the Trust
Agreement to the extent applicable in the circumstances existing at the time of
such distribution.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures. If any
mutilated Debenture is surrendered to the Trustee together with such security or
indemnity as may be required by the Company or the Trustee to save each of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Debenture and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of actual notice to the Company or
the Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon the receipt of a Company Order requesting
authentication its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Debenture, a new Debenture bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
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36
Upon the issuance of any new Debenture 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 Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture 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 Debentures 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 Debentures.
SECTION 3.7 Payment of Interest; Interest Rights Preserved. Interest on
any Debenture 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
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the Regular Record Date, except that interest payable on the Stated
Maturity of the Debentures shall be paid to the Person to whom principal is
paid.
Any interest on the Debentures which is payable, but is not timely paid
or duly provided for, on an Interest Payment Date ("Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on the 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 (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessors Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on the Debentures and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first class, postage prepaid, to each Holder of the Debentures
at the address of such Holder as it appears in the Securities 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 mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons
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in whose names the Debentures (or their respective Predecessor
Debentures) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) 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 Debentures may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Debentures are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
SECTION 3.8 Persons Deemed Owners. The Company, the Trustee, the Paying
Agent and any agent of the Company or the Trustee or the Paying Agent may treat
the Person in whose name any Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest or premium on such Debenture and for all other purposes
whatsoever, whether or not such Debenture be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9 Cancellation. All Debentures surrendered for payment,
redemption, conversion transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Debentures and
Debentures surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver or cause to be
delivered to the Trustee for cancellation any Debentures previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debentures so delivered shall be promptly canceled by
the Trustee. No Debentures shall be authenticated in lieu of or in exchange for
any Debentures canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Debentures shall be destroyed by the
Trustee and upon written request, the Trustee shall deliver to the Company a
certificate of such destruction.
SECTION 3.10 Computation of Interest. Interest on the Debentures shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Deferrals of Interest Payment Dates. The Company shall have
the right, at any time during the term of the Debentures, so long as no Event of
Default has occurred and is continuing, from time to time to extend the interest
payment period for the Debentures for up to 20 consecutive quarters with respect
to each deferral period (each, an "Extension Period") during which periods the
Company shall have the right to not make payments of interest (including any
Liquidated Damages) on any Interest Payment Date, and at the end of such
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest thereon, if any, at the rate
specified for the Debentures, to the extent permitted by applicable law),
provided, however, that during any such Extension Period, the Company shall not,
and shall cause any Subsidiary not to, (a) declare or pay any dividends or
distributions on, or redeem, purchase,
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acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (i) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (ii)
redemptions or purchases of any rights pursuant to the Company's Stockholder
Rights Agreement and the declaration of a dividend of such rights or the
issuance of preferred stock under such plans in the future, (iii) payments under
the Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its directors,
officers or employees, (v) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one series or class of the
Company's capital stock for another series or class of the Company's capital
stock and (vi) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged). Prior to the termination of
any such Extension Period, the Company may further extend the interest payment
period, provided that no such Extension Period shall exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Debentures. Upon
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may select a
new Extension Period, subject to the above requirements. No interest, including
Additional Interest and Liquidated Damages, if any, shall be due and payable
during an Extension Period, except at the end thereof. The Company shall give
the Trustee, the Property Trustee and the Administrative Trustees written notice
of its selection of such Extension Period at least one Business Day prior to the
earlier of (i) the record date for the date the distributions on the Preferred
Securities of the Trust (or if no, Preferred Securities are outstanding, for the
date interest on the Debentures) would have been payable except for the election
to begin such Extension Period and (ii) the date the Property Trustee (or, if no
Preferred Securities are outstanding, the Trustee) is required to give notice to
NYSE or other applicable self-regulatory organization or to holders of such
Preferred Securities (or, if no Preferred Securities are outstanding, to the
Holders of such Debentures) of such record date, but in any event not less than
one Business Day prior to such record date. Such notice shall specify the period
selected.
The Trustee shall promptly give notice of the Company's selection of
such Extension Period to the Holders of the outstanding Debentures and Preferred
Securities.
SECTION 3.12 Right of Set-off. Notwithstanding anything to the contrary
in the Indenture, the Company shall have the right to set-off any payment it is
otherwise required to make thereunder in respect of the Debenture to the extent
the Company has theretofore made, or is concurrently on the date of such payment
making, a payment relating to the Debentures under the Guarantee.
SECTION 3.13 Agreed Tax Treatment. Each Debenture issued hereunder shall
provide that the Company and, by its acceptance of a Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, such Debenture agree that for United States Federal, state and
local tax purposes it is intended that such Debenture constitute indebtedness.
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SECTION 3.14 CUSIP Numbers. The Company in issuing the Debentures may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use such "CUSIP" number 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 number either as printed on the Debentures or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 3.15 Global Security.
(a) In connection with distribution of Debentures to holders of
the Preferred Securities in connection with the involuntary or voluntary
dissolution of the Trust, including a dissolution following the
occurrence of a Special Event,
(i) the Debentures in certificated form may be presented
to the Trustee by the Property Trustee in exchange for a global
certificate in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the
Depositary, or its custodian, for crediting to the accounts of
its participants pursuant to the procedures of the Depositary.
The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in
accordance with this Indenture; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated
form may be presented to the Trustee by the Property Trustee and
any Preferred Security certificate which represents Preferred
Securities other than Preferred Securities held by the
Depositary or its nominee ("Non Book- Entry Preferred
Securities") will be deemed to represent beneficial interests in
Debentures 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
Securities Registrar for transfer or reissuance at which time
such Non-Book Entry Preferred Security certificates will be
canceled and a Debenture, 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
canceled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with this
Indenture. On issue of such Debentures, Debentures 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 Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
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(c) If (a) the Depositary notifies the Company that it is
unwilling or unable to continue as a depositary for such Global
Debenture and no successor depositary shall have been appointed within
90 days by the Company, (b) the Depositary, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the
Depositary is required to be so registered to act as such depositary and
no successor depositary shall have been appointed within 90 days by the
Company, (c) the Company, in its sole discretion, determines that such
Global Debenture shall be so exchangeable or (d) there shall have
occurred and be continuing an Event of Default with respect to such
Debentures, as the case may be, the Company will execute, and, subject
to Article 3 of this Indenture, the Trustee, upon written notice from
the Company and receipt of a Company Order, will authenticate and
deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such Global
Debenture. In addition, upon an Event of Default that has occurred and
is continuing or in the event the Company determines that the Debenture
shall no longer be represented by a Global Debenture, the Company will
execute, and subject to Section 3.5 of this Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company and a Company Order, will authenticate and make available for
delivery, the Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee.
Such Debentures in definitive registered form issued in exchange for the
Global Debenture shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee in writing. The Trustee shall deliver such Debentures to the
Depositary for delivery to the Persons in whose names such Debentures
are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to (i) any surviving rights of
transfer, substitution and exchange of Debentures, (ii) rights hereunder of
Holders to receive payments of principal of (and premium, if any) and interest
(including Additional Interest, if any) on the Debentures and other rights,
duties and obligations of the Holders as beneficiaries hereof with respect to
the amounts, if any, so deposited with the Trustee and (iii) the rights and
obligations of the Trustee hereunder), 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
(a) either
(i) all Debentures theretofore authenticated and delivered
(other than (i) Debentures which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.6 and (ii) Debentures for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by
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the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all such Debentures not theretofore delivered to
the Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit or are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
written notice of redemption to the Trustee in the name,
and at the expense, of the Company, and the Company has
deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the
currency or currencies in which the Debentures are payable
sufficient (without regard to investment of such amount
deposited) to pay and discharge the entire indebtedness on
the Debentures not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest (including any Additional Interest) to the date
of such deposit or to the Stated Maturity; or
(C) have been redeemed or tendered for conversion;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Debentures 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 premium, if any) and interest for whose payment such money or
obligations have been deposited with or received by the Trustee; provided,
however, such moneys need not be segregated from other funds except to the
extent required by law.
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ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to the Debentures, 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 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):
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium, if
any, on) the Debentures when due whether at Stated Maturity, upon
redemption by declaration or otherwise;
(c) failure on the part of the Company duly to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Company contained in the Debentures or contained in this
Indenture (other than a covenant or agreement which has been expressly
included in this Indenture solely for the benefit of the Company) and
continuance for such failure for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied
and stating that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by a Holder or Holders
of at least 25% in aggregate principal amount of the Debentures at the
time Outstanding or the holder or holders of at least 25% in aggregate
liquidation amount of the Preferred Securities;
(d) failure by the Company to issue Company Common Stock upon an
appropriate election by the Holder or Holders of the Debentures to
convert the Debentures into shares of Company Common Stock;
(e) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of the Company
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property or the making by it
of an assignment for the benefit
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of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated as bankrupt, or the taking of corporate action by the
Company in furtherance of any such action.
SECTION 5.2 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 aggregate principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, if an Event of Default occurs
and is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures fail to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then outstanding
shall have such right by a notice in writing to the Company and the Trustee, and
upon any such declaration such principal amount (or specified amount) of and the
accrued interest (including any Additional Interest) on all the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on the Debentures shall remain
subordinated to the extent provided in Article 12.
At any time after such a declaration of acceleration with respect to
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Debentures, by written notice to the Company and the Trustee may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest (including any
Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on) the
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures;
(iii) to the extent that payment of such interest is
lawful, interest (including any Additional Interest) upon overdue
installments of interest at the rate borne by the Debentures;
(iv) 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
(b) all Events of Default that shall have occurred and been
continuing with respect to Debentures, other than the non-payment of the
principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13. If
the holders of a majority in aggregate principal amount of the
Outstanding Debentures fail to rescind and annul such declaration and
its consequences, the holders of a majority in liquidation amount of the
Preferred Securities then outstanding shall have such right.
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of interest
(including any Additional Interest) on the Debentures when such interest
becomes due and payable and such default continues for a period of 30
days, or
(b) default is made in the payment of the principal of (and
premium, if any, on) the Debentures whether at the Stated Maturity
thereof upon redemption by declaration or otherwise, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of
the Debentures, the whole amount then due and payable on the Debentures
for principal (and premium, if any) and interest (including any
Additional Interest), including, to the extent that payment of such
interest shall be lawful, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest (including
any Additional Interest) at the rate borne by the Debentures, and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgement or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Debentures, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of the Debentures by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Debentures or the property of the
Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal
(or premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim (including a claim for
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Debentures and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the
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claims of the Holders and any predecessor to the Trustee under
Section 6.7 and, of the Holders allowed in any such judicial
proceedings; and
(ii) 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 in
accordance with Section 5.6; and
(b) 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
for distribution in accordance with Section 5.6, 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 to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures.
All rights of action and claims under this Indenture or the Debentures may be
prosecuted and enforced by the Trustee without the possession of any of the
Debentures or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgement shall, after
provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.6 Application of Money Collected. Any money or property
collected or to be applied by the Trustee with respect to the Debentures
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 or
property on account of principal (or premium, if any) or interest (including any
Additional Interest), upon presentation of the Debentures and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: to the payment of all amounts due the Trustee and any predecessor
Trustee under Section 6.7,
SECOND: to the payment of the amounts then due and unpaid upon the
Debentures for principal (and premium, if any) and interest (including any
Additional Interest), 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 the Debentures for principal (and
premium, if any) and interest (including any Additional Interest), respectively;
and
THIRD: the balance, if any, to the Person or Persons entitled thereto.
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SECTION 5.7 Limitation on Suits. No Holder of the Debentures, including
a holder of Preferred Securities acting to enforce the rights of the Property
Trustee as a Holder of the Debentures pursuant to Section 5.8 of the Trust
Agreement, shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of the Outstanding
Debentures, the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of the Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest (including any Additional Interest) on such Debenture on
the Maturity or to convert such Debenture in accordance with Article 13 and to
institute suit for the enforcement of any such payment and right to convert, and
such right shall not be impaired without the consent of such Holder. For so long
as any Preferred Securities remain Outstanding, to the fullest extent permitted
by law and subject to the terms of this Indenture and the Trust Agreement, upon
an Event of Default that has occurred and is continuing specified in Sections
5.1(a) or 5.1(b), any holder of Preferred Securities shall have the right to
institute a proceeding directly against the Company, for enforcement of payment
to such holder of the principal amount of (or premium, if any) or interest on
Debentures having a principal amount equal to the liquidation amount of the
Preferred Securities of such holder (a "Direct Action"). Notwithstanding any
payment made to such holder of Preferred Securities by the Company in connection
with a Direct Action, the Company shall remain obligated to pay the principal of
(or premium, if any) or interest on the Debentures held
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by the Trust or the Property Trustee. In connection with any such Direct Action,
the rights of the Company will be subrogated to the rights of any holder of the
Preferred Securities to the extent of any payment made by the Company to such
holder of Preferred Securities as a result of such Direct Action. Except as set
forth in this Section, the holders of Preferred Securities shall have no right
to execute any right or remedy available to the Holders of or in respect of, the
Debentures.
SECTION 5.9 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 the Company, the Trustee and the Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise
provided in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of the Debentures to exercise any right or remedy
accruing upon any Event of Default that shall have occurred and be continuing
shall impair any such right or remedy, or constitute a waiver of any such Event
of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of a majority in aggregate
principal amount of the Outstanding Debentures 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, with
respect to the Debentures, provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would be unjustly prejudicial
to the Holders not joining in any such direction or would involve the
Trustee in personal liability.
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Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to the Debentures and, if all or part of the Debentures
is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Debentures entitled to join in such notice,
which record date shall be at the close of business on the day the Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date, provided,
that, unless the Holders of a majority in principal amount of the Outstanding
Debentures shall have joined in such notice prior to the day which is 90 days
after such record date, such notice shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.12.
SECTION 5.13 Waiver of Past Defaults. Subject to Section 9.2 hereof, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Debentures affected by any past default may on behalf of the Holders
of all the Debentures waive any past default hereunder with respect to
Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures (unless
such default has been cured or waived and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee), or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture;
provided, however, that if the Debentures 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 amount of Trust Securities shall have consented to such waiver;
provided, further, that if the consent of the Holder of each outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities 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. If the Holders of a
majority in aggregate principal amount of the Outstanding Debentures fail to
waive such Event of Default, the holders of a majority in aggregate liquidation
amount of Preferred Securities shall have such right. No such rescission shall
affect any subsequent default or impair any right consequent thereon. The
provisions of this Section 5.13 shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act, and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Indenture and the Debentures, as permitted
by the Trust Indenture Act.
SECTION 5.14 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Debenture by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture,
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or in any suit against the Trustee for any action taken or omitted by it as
Trustee the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Debentures, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures on or after the Maturity of the Debentures or to convert a Debenture
in accordance with Article 13. The provisions of this Section 5.14 shall be in
lieu of Section 315(e) of the Trust Indenture Act, and such Section 315(e) of
the Trust Indenture Act is hereby expressly excluded from this Indenture and the
Debentures, as permitted by the Trust Indenture Act.
SECTION 5.15 Waiver of Usury, 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section 5.12
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture.
(d) 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 there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 Notice of Defaults. Within 90 days after actual knowledge by
a Responsible Officer of the Trustee of the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Holders of Debentures, as their names
and addresses appear in the Securities Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on Debenture, the Trustee shall be fully protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders of Debentures; and provided, further, that, except in the case of any
default of the character specified in Section 5.1(c), no such notice to Holders
of the Debentures 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 6.3 Certain Rights of Trustee. Subject to the provisions of
Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(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, conclusively rely upon an Officers' Certificate
and an Opinion of Counsel;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders 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 is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of
its duties if the Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it;
(g) 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, indenture, Debenture or other paper or document,
but the Trustee in its discretion may make such inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(h) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be
responsible for any misconduct or negligence on any part of any agent,
custodian, nominee or attorney appointed with due care by it hereunder;
and
(i) in the event that the Trustee is also acting as a Paying
Agent, Authenticating Agent, Conversion Agent, and/or Securities
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 6 shall also be afforded to such Paying Agent,
Authenticating Agent, Conversion Agent, and/or Securities Registrar.
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures. The
recitals contained herein and in the Debentures, 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 Debentures. The Trustee shall not be accountable for the use or
application by the Company of the Debentures or the proceeds thereof.
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SECTION 6.5 May Hold Debentures. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Debentures and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar or such
other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability of interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel); and
(c) to indemnify the Trustee and its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or
bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
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. This Indemnification shall survive the
termination of this Agreement or the earlier resignation or removal of
the Trustee.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Debentures
on all money or property held or collected by the Trustee except assets held in
trust to pay principal and premium, if any, or interest on particular Debentures
pursuant to Section 4.1(a)(ii)(B), or pursuant to any redemption pursuant to
Article 11 hereof if monies have been deposited for such redemption and notice
has been given and the Redemption Date has passed. Such lien shall survive the
satisfaction and discharge of this Indenture or the earlier resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.8 Disqualification; Conflicting Interests. The Trustee shall
be subject to the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Trustee
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from filing with the Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trustee Indenture Act. The Trust
Agreement and the Guarantee shall be deemed to be specifically described in this
Indenture for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.9 Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States of America or of any State, Territory or the District
of Columbia, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
to the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee hereunder.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Debentures,
delivered to the Trustee and to the Company.
(d) If at any time:
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(i) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged as 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, (A) the
Company by Board Resolution may remove the Trustee, or (B)
subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of
himself and all other similarly situated Holders, petition any
court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Debentures, 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 with respect to the Debentures
shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Debentures 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 Debenture for at least six
months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of the Debentures as their name and addresses
appear in the Securities Register. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but,
on the written 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
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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.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, power and trusts
referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise 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 Debentures 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 Debentures so authenticated, and in case any
Debentures shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13 Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debentures), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents, as described and with the powers and
obligations conferred by this Section 6.14 ("Authenticating Agent or Agents"),
with respect to the Debentures which shall be authorized to act on behalf of the
Trustee to authenticate the Debentures issued upon exchange, registration of
transfer or partial redemption thereof, and Debentures so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Debentures by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
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an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of the
Debentures. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment is made pursuant to this Section, the Debentures may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within mentioned
indenture.
---------------------------
---------------------------
As Trustee
By:
-----------------------
As Authenticating Agent
By:
-----------------------
Authorized Officer
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ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee (unless the Trustee
is acting as the Securities Registrar).
(a) quarterly at least five Business Days before each Interest
Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of each such date.
(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.
SECTION 7.2 Preservation of Information: Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its
capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debentures,
and the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, at the times and in the manner
provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted within 60 days after
December 31 in each calendar year, commencing with December 31, 1997.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange or self regulatory organization of which the Trustee has
received notice by the Company upon which the Debentures are listed and
also with the Commission. The Company will notify the Trustee in writing
whenever the Debentures are listed on any stock exchange or
self-regulatory organization.
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SECTION 7.4 Reports by Company. The Company shall file with the Trustee
and with 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 in the Trust
Indenture Act, provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is required to be filed with the Commission. Notwithstanding that
the Company may not be required to remain subject to the reporting requirements
of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company shall
continue to file with the Commission and provide the Trustee and Holders with
the annual reports and the information, documents and other reports which are
specified in Sections 13 and 15(d) of the Securities Exchange Act of 1934. The
Company also shall comply with the other provisions of Trust Indenture Act
Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including any
Additional Interest) on all the Debentures and the performance 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 13;
(b) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease is
permitted under the Trust Agreement and Guarantee and does not give rise
to any breach or violation of the Trust Agreement or Guarantee; and
(d) 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 any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and the
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Trustee, subject to Section 6.1, may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted. Upon any consolidation or
merger by the Company with or into any other corporation, or any conveyance,
transfer or lease by the Company of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein; and in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Debentures and may be dissolved and liquidated.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Debentures
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee, and, upon the Company Order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to a Company Order such provisions and any Debentures which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debentures had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Debentures thereafter to
be issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders. Without
the consent of or notice to any Holder, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) 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 Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any property
to or with the Trustee or to surrender any right or power herein
conferred upon the Company; or
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(c) to add to covenants of the Company for the benefit of the
Holders of the Debentures or to surrender any right or power herein
conferred upon the Company; or
(d) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article 13; or
(e) to add any additional Events of Default; or
(f) 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, provided that such action pursuant to this clause
shall not materially adversely affect the interest of the Holders of
Debentures and for so long as any of the Preferred Securities shall
remain outstanding, the holders of such Preferred Securities; or
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the Trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(h) 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
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Debentures, and all other matters required pursuant
to Section 3.5 or otherwise necessary, desirable or appropriate in
connection with the issuance of Debentures to holders of Preferred
Securities in the event of a distribution of Debentures by the Trust if
a Special Event occurs and is continuing.
SECTION 9.2 Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Debentures, 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 of the Debentures under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 with respect
to the extension of the interest payment period of the Debentures,
change the Stated Maturity of the principal of, or any installment of
interest (including any Additional Interest) on, the Debentures, or
reduce the principal amount thereof or the rate 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 Debenture
or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Maturity thereof
(or, in the case of redemption, on or after the date fixed for
redemption thereof), or
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(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Indenture with respect to the
subordination of the Debentures in a manner adverse to such Holder; or
(c) reduce the percentage in principal amount of the Outstanding
Debentures, 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
(d) modify any of the provisions of this Section, Section 4.1,
Section 5.8, Section 5.13 or Section 10.6, 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
Debenture affected thereby, or the consent of the holders of all the
Preferred Securities as the case may be; or
(e) modify the provisions in Article 12 of this Indenture with
respect to the subordination of Outstanding Debentures in a manner
adverse to the Holders thereof;
provided that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent of
the holders of at least a majority of the aggregate liquidation amount of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Indenture would require the consent of each Holder of
Debentures, no such consent will be given by the Property Trustee without the
prior consent of each holder of the Preferred Securities.
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.
SECTION 9.3 Execution of Supplemental Indentures. In executing or
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in conclusively relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes, and every Holder of the Debentures theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
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SECTION 9.5 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debentures to Supplemental Indentures.
Debentures 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 Debentures
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of the Debentures that it will duly and
punctually pay the principal of (and premium, if any) and interest on the
Debentures in accordance with the terms of the Debentures and this Indenture.
SECTION 10.2 Maintenance of Office or Agency. The Company will maintain
in the United States, an office or agency where Debentures may be presented or
surrendered for payment and an office or agency where Debentures may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debentures and this Indenture may be served. The
Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such 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 where the Debentures may be presented or surrendered for any
or all of 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 and any change in the location of any such
office or agency.
SECTION 10.3 Money for Debenture Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Debentures, it will, on or before each due date of the principal of (or premium,
if any) or interest on any of the Debentures, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (or premium, if any) 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 failure so to act. Whenever the Company shall
have one or more Paying Agents, it will, on or before each due date
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of the principal of or interest on the Debentures, deposit with a Paying Agent a
sum sufficient to pay the principal (or premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal and premium (if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its 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:
(a) hold all sums held by it for the payment of the principal of
(or premium, if any) or interest on Debentures in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Debentures) in the making of any payment of
principal (or premium, if any) or interest;
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payment by the Company or 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 premium, if
any) or interest on any Debenture and remaining unclaimed for two years after
such principal (or premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request, after all
payments owing the Trustee have been paid, to the Company, or (if then held by
the Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be discharged from
such trust; and the Holder of such Debenture shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 10.4 Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary
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or upon the income, profits or property of the Company or any Subsidiary, and
(b) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 10.5 Statement as to Compliance. The Company shall deliver to
the Trustee, within 120 days after the end of each calendar year of the Company
an Officers' Certificate (signed by at least one of the officers referred to in
Section 314(a)(4) of the Trust Indenture Act) covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge. For the
purpose of this Section 10.5, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
SECTION 10.6 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in this
Article 10, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Debentures, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and effect.
SECTION 10.7 Additional Sums. In the event that (a) the Property Trustee
is the Holder of all of the Outstanding Debentures, (b) a Tax Event in respect
of the Trust shall have occurred and be continuing and (c) the Company shall not
have (i) redeemed the Debentures pursuant to Section 11.7 or 11.8 or (ii)
dissolved the Trust pursuant to Section 9.2(b) of the Trust Agreement, the
Company shall pay to the Trust (and its permitted successors or assigns under
the Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered Holder of the Debentures, such additional amounts as
may be necessary in order that the amount of distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and payable by
the Trust on the Preferred Securities and Common Securities that at any time
remain outstanding in accord with the terms thereof shall not be reduced as a
result of any Additional Taxes (the "Additional Sums"). Whenever in this
Indenture or the Debentures there is a reference in any context to the payment
of principal of (or premium, if any) or interest on the Debentures, such mention
shall be deemed to include mention of the payments of the Additional Sums
provided for in this paragraph to the extent that, in such context, Additional
Sums are, were or would be payable in respect thereof pursuant to the provisions
of this paragraph and express mention of the payment of Additional Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Sums in those provisions hereof where such express mention is not
made, provided, however, that the extension of an interest payment period
pursuant to Section 3.11 or the Debentures shall not extend the payment of any
Additional Sums that may be due and payable during such interest payment period.
SECTION 10.8 Additional Covenants. The Company covenants and agrees with
each Holder of Debentures that so long as the Debentures are outstanding, if (i)
there shall have
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occurred any event of which the Company has actual knowledge that (A) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder and (B) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) the Company shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) the Company shall
have given notice of its selection of an Extension Period as provided herein and
shall not have rescinded such notice, or such period, or any extension thereof,
shall be continuing, then the Company shall not, and shall cause any Subsidiary
not to, (x) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company's capital stock or (y) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (1) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (2)
redemptions or purchases of any rights pursuant to the Company's Stockholder
Rights Agreement and the declaration of a dividend of such rights or the
issuance of preferred stock under such plans in the future, (3) payments under
the Guarantee, (4) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its directors,
officers or employees, (5) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one series or class of the
Company's capital stock for another series or class of the Company's capital
stock and (6) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged).
The Company also covenants with each Holder of the Debentures (i) that
for so long as Preferred Securities are outstanding not to convert the
Debentures except pursuant to a notice of conversion delivered to the Conversion
Agent by a holder of Preferred Securities and (ii) to maintain directly or
indirectly 100% ownership of the Common Securities of the Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (iii) not to voluntarily
terminate, wind-up, liquidate or dissolve the Trust, except (a) in connection
with a distribution of the Debentures to the holders of Preferred Securities in
dissolution of the Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement and (iv) to use
its reasonable efforts, consistent with the terms and provisions of the Trust
Agreement to cause the Trust to remain a business trust and not to be classified
as an association taxable as a corporation for United States Federal income tax
purposes.
SECTION 10.9 Registration Rights. The holders of the Preferred
Securities, the Holders, the holders of the Guarantee and the shares of Company
Common Stock issuable upon conversion of the Securities are entitled to the
benefits of a Registration Rights Agreement, dated as of December 12, 1997,
among the Company and the Initial Purchasers (the "Registration Rights
Agreement").
SECTION 10.10 Payment of Expenses of the Trust. In connection with the
offering, sale and issuance of the Debentures to the Property Trustee and in
connection with the sale of the Preferred Securities by the Trust, the Company
shall:
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(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities (as defined in the
Purchase Agreement), including commissions, discounts and expenses
payable pursuant to the Purchase Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section
6.7 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Preferred Securities) of the Trust, pay
for all costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Preferred Securities (including
commissions, discounts and expenses in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the
acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Debentures shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company, the
Company shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of Debentures to be
redeemed.
SECTION 11.2 Selection of Debentures to Be Redeemed. If less than all
the Debentures are to be redeemed, the particular Debentures to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee from the Outstanding Debentures not previously called for redemption, by
lot or by such other method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal
amount of the Debentures Outstanding, provided that the unredeemed portion of
the principal amount of the Debentures be in an authorized denomination (which
shall not be less than the minimum authorized denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
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SECTION 11.3 Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not later than the thirtieth (30th)
day, and not earlier than the sixtieth (60th) day, prior to the date fixed for
redemption, to each Holder of Debentures to be redeemed, at the address of such
Holder as it appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be
redeemed (the "Redemption Price");
(c) if less than all Outstanding Debentures are to be redeemed,
the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Debentures to be
redeemed (including, if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debenture or portion thereof, and that
upon deposit with the Paying Agent interest thereon, if any, shall cease
to accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be
surrendered for payment of the redemption price at which the Debentures
are to be redeemed;
(f) that a Holder of Debentures who desires to convert Debentures
called for redemption must satisfy the requirements for conversion
contained in the Debentures, the then existing Conversion Price, and the
date and time when the option to convert shall expire; and
(g) the record date for the determination of holders entitled to
receive payment of the Redemption Price, as provided in Section 11.5.
Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.4 Deposit of Redemption Price. Prior to 12:00 noon, New York
City time, on the Redemption Date specified in the notice of redemption given as
provided in Section 11.3, the Company will deposit with the Trustee or with one
or more Paying Agents (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 4.2) an amount of money
sufficient to redeem on the Redemption Date all the Debentures so called for
redemption at the applicable Redemption Price.
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If any Debenture called for redemption has been converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Debenture shall (subject to any right of the
Holder of such Debenture or any Predecessor Debenture to receive interest as
provided in the last paragraph of Section 3.7) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.5 Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 11.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, including any accrued interest (and any Additional
Interest) thereon, and from and after such date (unless the Company shall
default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance with
said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, provided, however, that installments of interest on Debentures
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Debentures, or one of more Predecessor Debentures,
registered as such at the close of business on the relevant Regular Record Dates
or Special Record Dates, as the case may be, according to their terms and the
provisions of Section 3.7. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
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, with the same
force and effect as if made on such date. Payment of the Redemption Price shall
be made to the Holders of such Debentures as they appear on the Securities
Register for the Debentures on the relevant record date, which shall be the date
which is the fifteenth (15th) day (whether or not a Business Day) preceding such
Redemption Date.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 11.6 Debentures 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 Debenture during a period beginning at 9:00 a.m. (New York
City time) 15 Business Days before any selection for redemption of Debentures
and ending at 5:00 p.m. (New York City time) on the earliest date in which the
relevant notice of redemption is deemed to have been given to all Holders of
Debentures to be so redeemed and (ii) register the transfer of or exchange any
Debentures so selected for redemption, in whole or in part, except for the
unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be surrendered
at the 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 Debenture without service charge, a new Debenture or Debentures, of any
authorized denomination as
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requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Debenture so surrendered.
Each Debenture shall be subject to partial redemption only in the amount of $50
or integral multiples thereof.
The Debentures are not entitled to the benefit of any Sinking or like
fund.
SECTION 11.7 Mandatory Redemption. Upon (i) repayment at maturity or
(ii) as a result of acceleration upon the occurrence and continuation of an
Event of Default, the Company shall redeem the Outstanding Debentures, in whole
but not in part, at a redemption price equal to 100% of the principal amount of
such Debentures plus any accrued and unpaid interest, including any Additional
Interest, to the date fixed for redemption.
SECTION 11.8 Optional Redemption. Except as set forth below, on and
after December 1, 2001 and subject to the next succeeding sentence, the Company
shall have the right, at any time and from time to time, to redeem the
Debentures, in whole or in part, upon notice given as set forth in Section 11.3
during the twelve month periods beginning on December 1 in each of the following
years at the indicated Redemption Price (expressed as a percentage of the
principal amount of the Debentures being redeemed), together with any accrued
but unpaid interest on the portion being redeemed:
Redemption Price Redemption Price
Year (% of principal amount) Year (% of principal amount)
- ---- ------------------------ ---- -----------------------
2001.......... 103.150% 2005......... 101.050%
2002.......... 102.625% 2006......... 100.525%
2003.......... 102.100% 2007 and thereafter 100.000%
2004.......... 101.575%
The Company may not redeem the Debentures in part unless all accrued and
unpaid interest has been paid in full on all outstanding Debentures for all
quarterly interest periods terminating on or prior to the giving of notice of
the Redemption Date.
If a Tax Event shall occur and be continuing, the Company shall have
the right, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures in whole or in part, for cash upon the later of (i) 90 days following
the occurrence of such Tax Event or (ii) December 1, 2001, at a Redemption Price
equal to the principal amount of such Debentures plus any accrued and unpaid
interest, including Additional Interest, to the date fixed for such redemption.
SECTION 11.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to dissolve the
Trust and cause the Debentures to be distributed to the holders of the
Preferred Securities in dissolution of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law.
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(b) If a Special Event in respect of the Trust shall occur and
be continuing, the Company shall give the Property Trustee notice of the
same. If a Special Event in respect of the Trust shall occur and be
continuing, the Trust Agreement requires the Property Trustee to direct
the Conversion Agent (as defined in the Trust Agreement) to exchange all
outstanding Trust Securities for the Debentures having a principal
amount equal to the aggregate liquidation amount of the Trust Securities
to be exchanged with accrued interest in an amount equal to any unpaid
distributions (including any Additional Amounts) on the Trust Securities
provided that, in the case of a Tax Event that shall have occurred and
be continuing, the Company shall have the right to direct the Property
Trustee that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall have elected to
pay any Additional Sums such that the amounts received by holders of the
Trust Securities that remain outstanding are not reduced as a result of
such Tax Event, and shall not have revoked any such election or failed
to make such payments or (ii) if the Company shall instead elect to
redeem the Debentures, in whole or in part, in the manner set forth in
Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on each and all of the
Debentures are hereby expressly made junior and subordinate and subject in right
of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt. Notwithstanding the foregoing, any and
all amounts payable to the Trustee pursuant to Section 6.7 are not subject to
the provisions of Article 12.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc. Upon any
payment or distribution of assets of the Company to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt), if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures, are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or Debentures
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, but not including any
payments that are made from funds on deposit pursuant to Section 4.1(a)(ii)(B)
or funds on deposit for the redemption of Debentures for which notice of
Redemption has been given and the applicable Redemption Date has passed, such
payment or distribution being hereinafter referred to as a "Junior Subordinated
Payment"), in
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respect of principal of (or premium, if any) or interest (including any
Additional Interest, if any) on the Debentures or on account of the purchase or
other acquisition of Debentures by the Company or any Subsidiary and to that end
the holders of Senior Debt shall be entitled to receive, for application to the
payment thereof any payment or distribution of any kind of character, whether in
cash, property or Debentures, including any Junior Subordinated Payment, which
may be payable or deliverable in respect of the Debentures in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include 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 which securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article 8 shall not be deemed
a Proceeding for the purposes of this Section, if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article Eight.
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of
Debentures. In the event that the Debentures are declared due and payable before
their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time the Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Debentures
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any
Subsidiary.
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In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known, as set forth in Section 12.10, to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any
Senior Debt, or in the event that any event of default with respect to
any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have
been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such
event or default, then no payment or distribution of any kind or
character, whether in cash, properties or Debentures (including any
Junior Subordinated Payment) shall be made by the Company on account of
principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Debentures or on account of the purchase or
other acquisition of Debentures by the Company or any Subsidiary other
than payments made from funds on deposit pursuant to Section
4.1(a)(ii)(B) or from funds on deposit for the redemption of Debentures
for which notice of redemption has been given and the Redemption Date
has passed.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of the Debentures prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known as set forth in Section 12.10, to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Debentures shall prevent
(a) the Company, at any time except during the pendency of any Proceeding
referred to in Section 12.2 or under the conditions described in Sections 12.3
and 12.4, from making payments at any time of principal of (or premium, if any)
or interest on the Debentures, or (b) the application by the Trustee of any
money deposited with it hereunder to the payment of or on account of the
principal of (or premium, if any) or interest (including any Additional
Interest) on the Debentures or the retention of such payment by the Holders, if,
at the time of such application by the Trustee, a Responsible Officer of the
Trustee did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article.
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SECTION 12.6 Subrogation to Rights of Holders of Senior Debt. Subject to
the payment in full of all Senior Debt, or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, the Holders of the Debentures shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to Senior
Debt of the Company to substantially the same extent as the Debentures are
subordinated to the Senior Debt and is entitled to like rights of subrogation by
reason of any payments or distributions made to holders of such Senior Debt) to
the rights of the holders of such Senior Debt to receive payments and
distributions of cash, property and securities applicable to the Senior Debt
until the principal of (and premium, if any) and interest on the Debentures
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Debentures or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Debt by Holders of the
Debentures or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Debt, and the Holders of the Debentures, be deemed to be a
payment or distribution by the Company to or on account of the Senior Debt.
SECTION 12.7 Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Debentures on the one hand and the holders
of Senior Debt on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Debentures is intended to or shall (a) impair, as
between the Company and the Holders of the Debentures, the obligations of the
Company, which are absolute and unconditional, to pay to the Holders of the
Debentures the principal of (and premium, if any) and interest (including any
Additional Interest) on the Debentures as and when the same shall become due and
payable in accordance with their terms, or (b) affect the relative rights
against the Company of the Holders of the Debentures and creditors of the
Company other than their rights in relation to the holders of Senior Debt, or
(c) prevent the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior Debt
to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 12.8 Trustee to Effectuate Subordination. Each Holder of a
Debenture by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 12.9 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or be otherwise charged with.
SECTION 12.10 Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Debentures.
Notwithstanding the provisions of this Article or any
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other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Debentures, unless and until the
Trustee shall have received written notice thereof from the Company or a person
representing itself as a holder of Senior Debt or from any trustee, agent or
representative therefor (whether or not the facts contained in such notice are
true).
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article 6, and the
Holders of the Debentures shall be entitled to conclusively rely upon any order
or decree entered by any court of competent jurisdiction in which a Proceeding
is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Debentures, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt. With
respect to the holders of the Senior Debt of the Company, the Trustee undertakes
to perform or observe only such of its obligations and covenants as are set
forth in this Article 12, and no implied covenants or obligations with respect
to the holders of such Senior Debt shall be read into this Indenture against
Chase and/or the Trustee. Chase and/or the Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Debt and, subject to the
provisions of Section 6.3, neither the Trustee (nor Chase) shall be liable to
the holder of any Senior Debt if it shall pay over or deliver to Holders, the
Company, or any other person, money or assets to which any holder of such Senior
Debt shall be entitled to by virtue of this Article 12 or otherwise.
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and, subject to the requirements of the Trust Indenture Act, nothing in
this Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 12.14 Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intent
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment. For the
purpose of this Article only, (a) the issuance and delivery of junior securities
upon conversion or exchange of Debentures shall not be deemed to constitute a
payment or distribution on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures, and (b) the payment, issuance
or delivery of cash (including any payments for fractional shares), property or
securities (other than junior securities) upon conversion or exchange of a
Debenture shall be deemed to constitute payment on account of the principal of
such security. For the purpose of this Section, the term
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"junior securities" means (i) shares of any stock of any class of the Company
and (ii) securities of the Company which are subordinated in right of payment to
all Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Debentures are so subordinated as provided in this Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights. Subject to and upon compliance with the
provisions of this Article, the Debentures are convertible, at the option of the
Holder, at any time prior to the redemption or maturity, into fully paid and
nonassessable shares of Company Common Stock at an initial conversion rate of
0.9865 shares of Company Common Stock for each $50 in aggregate principal amount
of Debentures (equal to a conversion price of approximately $50.685 per share of
Company Common Stock), subject to adjustment as described in this Article 13 (as
adjusted, the "Conversion Price"). A Holder of Debentures may convert any
portion of the principal amount of the Debentures into that number of fully paid
and nonassessable shares of Company Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by dividing the principal
amount of the Debentures to be converted by the Conversion Price. In case a
Debenture or portion thereof is called for redemption, such conversion right in
respect of the Debenture or portion so called shall expire at the close of
business on the Redemption Date, unless the Company defaults in making the
payment due upon redemption.
SECTION 13.2 Conversion Procedures.
(a) In order to convert all or a portion of the Debentures, the
Holder thereof shall deliver to the Property Trustee, as conversion
agent or to such other agent appointed for such purposes (the
"Conversion Agent") an irrevocable Notice of Conversion setting forth
the principal amount of Debentures to be converted, together with the
name or names, if other than the Holder, in which the shares of Company
Common Stock should be issued upon conversion and, if such Debentures
are definitive Debentures, surrender to the Conversion Agent the
Debentures 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 Trust Agreement to convert such Preferred Securities
into Company 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 Debentures held by
the Trust (at an exchange rate of $50 principal amount of Debentures for
each Preferred Security) and (ii) to immediately convert such
Debentures, on behalf of such holder, into Company Common Stock pursuant
to this Article 13 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 Debentures except pursuant
to a Notice of Conversion 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 of record on the Regular Record Date will be entitled to receive
the interest paid on the subsequent Interest Payment Date on the
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portion of Debentures 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
Debenture which is converted, interest whose Stated Maturity is on or
after the date of conversion of such Debenture 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 Debentures being converted, which shall be deemed to be paid in
full. Debentures submitted for conversion prior to the expiration of
conversion rights as provided in Section 13.3 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 Trust Agreement, as the case may be. The Person or
Persons entitled to receive Company Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date and such
Person or Persons will cease to be a record Holder or record Holders of
the Debentures on that 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 or holder
in the Notice of Conversion, a certificate or certificates for the
number of full shares of Company Common Stock issuable upon such
conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the
same. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed number of
shares of Company Common Stock into which the Debentures 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 Debentures so converted
and any unpaid interest (including Additional Interest and Liquidated
Damages) accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Company 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 with respect to such fractional
interest on the date on which the Debentures or Preferred Securities, as
the case may be, were duly surrendered to the Conversion Agent for
conversion, 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 Debenture in part only,
a new Debenture or Debentures for the unconverted portion thereof will
be issued in the name of the Holder thereof upon the cancellation of the
Debenture converted in part in accordance with Section 3.5.
(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
Debentures) and as agent of the Holders of Debentures (in the conversion
of Debentures into Company Common Stock), as the case may be, directing
it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to
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exchange Debentures 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 13 and (ii) to convert all or
a portion of the Debentures into Company Common Stock and thereupon to
deliver such shares of Company Common Stock in accordance with the
provisions of this Article 13 and to deliver to the Trust a new
Debenture or Debentures for any resulting unconverted principal amount.
(f) Except as provided in Section 2.6, all shares of Company
Common Stock delivered upon any conversion of Restricted Securities
shall bear a Restrictive Securities Legend substantially in the form of
the legend required to be set forth on such Debentures and shall be
subject to the restrictions on transfer provided in such legend and in
Section 3.5 hereof. Neither the Trustee nor the Conversion Agent shall
have any responsibility for the inclusion or content of any such
Restrictive Securities Legend on such Company 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 Company Common
Stock, prior to or concurrently with a request to the Company to deliver
to such Conversion Agent certificates for such Company Common Stock,
written notice that the Debentures delivered for conversion are
Restricted Securities.
(g) The Company shall at all times reserve and keep available
out of its authorized and unissued Company Common Stock, solely for
issuance upon the conversion of the Debentures, such number of shares of
Company Common Stock as shall from time to time be issuable upon the
conversion of all the Debentures then outstanding. Notwithstanding the
foregoing, the Company shall be entitled to deliver upon conversion of
Debentures shares of Company Common Stock reacquired and held in the
treasury of the Company (in lieu of the issuance of authorized and
unissued shares of Company Common Stock) so long as any such treasury
shares are free and clear of all liens, charges, security interests or
encumbrances. Whenever the Company issues shares of Company Common Stock
upon conversion of Debentures, and the Company has in effect at such
time a stock purchase rights agreement under which holders of Company
Common Stock are issued rights ("Rights") entitling the holders under
certain circumstances to purchase an additional share or shares of
stock, the Company will issue, together with each such share of Company
Common Stock, such number of Rights (which number may be a fraction) as
shall at that time be issuable with a share of Company Common Stock
pursuant to such stock purchase rights agreement. Any shares of Company
Common Stock issued upon conversion of the Debentures shall be duly
authorized, validly issued and fully paid and nonassessable. The
Conversion Agent shall deliver the shares of Company Common Stock
received upon conversion of the Debentures to the converting Holder free
and clear of all liens, charges, security interests and encumbrances,
except for United States withholding taxes. The Company shall use its
best efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or
qualification of Company Common Stock (and all requirements to list
Company Common Stock issuable upon conversion of Debentures that are at
the time applicable), in order to enable the Company to lawfully issue
Company Common Stock upon conversion of the Debentures and to lawfully
deliver Company Common Stock to each Holder upon conversion of the
Debentures.
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(h) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Company Common Stock on
conversion of Debentures. The Company shall not, however, be required to
pay any tax which may be payable in respect of any transfer involved in
the issue and delivery of shares of Company Common Stock in a name other
than that in which the Debentures so converted were registered, and no
such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Conversion Agent the amount of any
such tax, or has established to the satisfaction of the Conversion Agent
that such tax has been paid.
(i) Nothing in this Article 13 shall limit the requirement of the
Company to withhold taxes pursuant to the terms of the Debentures or as
set forth in this Agreement or otherwise require the Trustee or the
Company to pay any amounts on account of such withholdings.
SECTION 13.3 Expiration of Conversion Rights. The conversion rights of
Holders of Debentures shall expire at the close of business on the date set for
redemption of the Debentures upon the redemption or Stated Maturity of the
Debentures.
SECTION 13.4 Conversion Price Adjustments. The conversion price shall be
subject to adjustment (without duplication) from time to time as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to
its Company Common Stock exclusively in shares of Company Common Stock,
(ii) subdivide its outstanding shares of Company Common Stock, (iii)
combine its outstanding shares of Company Common Stock into a smaller
number of shares or (iv) issue by reclassification of its shares of
Company 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
Debentures 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 Debentures
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 Debenture 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 Directors (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. In the event that such dividend, distribution, subdivision,
combination or issuance 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 record date had not been fixed.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Company
Common Stock entitling them (for a period expiring within 45 days after
the record date for the determination of stockholders entitled to
receive such rights or warrants) to subscribe for or purchase shares of
Company
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Common Stock at a price per share less than the Current Market Price per
share of Company Common Stock on such record date, the Conversion Price
for the Debentures 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
Company 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 Company Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of Company 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 Company 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 Company 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 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 Company 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 13.4),
the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately 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 of Company 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 Company Common Stock and the denominator shall be such Current Market
Price per share of Company 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. For purposes of this
subparagraph (c), any dividend or distribution that includes shares of
Company Common Stock or rights or warrants to subscribe for or purchase
shares of Company Common Stock shall be deemed instead to be (i) a
dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Company Common
Stock or such rights or warrants (making any Conversion Price reduction
required by this subparagraph (c)) immediately followed by (ii)
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a dividend or distribution of such shares of Company 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 distribution as defined in this subparagraph shall be
substituted as (x) "the record date in the case of a dividend or other
distribution," and (y) "the record date for the determination of
stockholders entitled to receive such rights or warrants" and (z) "the
date fixed for such determination" within the meaning of subparagraphs
(a) and (b) and (B) any shares of Company 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) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding
(i) all cash dividends, if the amount thereof does not exceed the per
share amount of the immediately preceding regular cash dividend (as
adjusted to reflect any of the events referred to in subparagraphs (a),
(b), (c), (d) or (e) of this Section and (ii) all cash dividends, if the
annualized amount thereof per share of Company Common Stock does not
exceed 12.5% of the Current Market Price per share of Company Common
Stock on the trading day immediately preceding the date of declaration
of such dividend), the Conversion Price shall be reduced so that the
same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the effectiveness of the Conversion
Price reduction contemplated by this subparagraph (d) by a fraction of
which the numerator shall be the Current Market Price per share of
Company Common Stock on the date fixed for the payment of such
distribution less the amount of cash so distributed (excluding that
portion of such distribution that does not exceed 12.5% of the Current
Market Price per share, determined as provided above) applicable to one
share of Company Common Stock and the denominator shall be such Current
Market Price per share of Company Common Stock, such reduction to become
effective immediately prior to the opening of business on the day
following the date fixed for the payment of such distribution; provided,
however, that in the event the portion of the cash so distributed
applicable to one share of Company Common Stock is equal to or greater
than the Current Market Price per share of Company Common Stock on the
record date mentioned above (excluding that portion of such distribution
that does not exceed 12.5% of the Current Market Price per share,
determined as provided above), in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of shares of
Debentures shall have the right to receive upon conversion the amount of
cash such Holder would have received had such Holder converted each
share of the Debentures immediately prior to the record date for the
distribution of the cash (less that portion of such distribution that
does not exceed 12.5% of the Current Market Price per share, determined
as provided above). 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 record date
had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of Company Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such
Subsidiary of consideration per share of Company Common Stock having a
fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration
Time") tenders or exchanges may be made pursuant to
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such tender or exchange offer (as it shall have been amended) that
exceeds 110% of the Current Market Price per share of Company Common
Stock on the trading day next succeeding the Expiration Time, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph (e) by a fraction of which the
numerator shall be the number of shares of Company Common Stock
outstanding (including any tendered or exchanged shares) at the
Expiration Time (including the Purchased Shares) (as defined below)
multiplied by the Current Market Price per share of Company Common Stock
on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based
on the acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all shares validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased
Shares") (excluding that portion of such consideration that does not
exceed 110% of the Current Market Price per share) and (y) the product
of the number of shares of Company Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Current Market Price
per share of Company Common Stock on the trading day next succeeding the
Expiration Time, such reduction to become effective immediately prior to
the opening of business on the day following the Expiration Time. In the
event that such tender or exchange offer is not so made, the Conversion
Price shall again be adjusted to be the Conversion Price which would
then be in effect if such record date had not been fixed.
(f) If the distribution date for the Rights of the Company
provided in the Stockholder Rights Agreement occurs prior to the
Conversion Date, and a Holder of the Debentures who converts such
Debentures after such distribution date is not entitled to receive the
Rights that would otherwise be attached (but for the date of conversion)
to the shares of Company Common Stock received upon such conversion,
then an adjustment shall be made to the Conversion Price pursuant to
clause (ii) of Section 13.4(a) as if the Rights were being distributed
to Company Common Stockholders of the Company immediately prior to such
conversion. If such an adjustment is made and the Rights are later
redeemed, invalidated or terminated, then a corresponding reversing
adjustment shall be made to the Conversion Price, on an equitable basis,
to take account of such event.
(g) The Company shall have the right to reduce from time to time
the Conversion Price by any amount selected by the Company for any
period of at least 30 days, provided, that Company shall give at least
15 days' written notice of such reduction to the Trustee and the
Property Trustee. The Company may, at its option, make such reductions
in the Conversion Price, in addition to those set forth above in Section
13.4(a), as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Company Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for United States Federal income tax purposes.
(h) Notwithstanding anything to the contrary in this Section
13.4, no adjustment of the Conversion Price will be made upon the
issuance of any shares of Company Common Stock (or securities
convertible or exchangeable for Company Common Stock), except as
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specifically provided above, including pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional
amounts in shares of Company Common Stock under any such plan, or the
issuance of any shares of Company Common Stock or options or rights to
purchase such shares pursuant to any present or future employee benefit
plan or program of the Company or pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security which does
not constitute an issuance to all holders of Company Common Stock of
rights or warrants entitling holders of such rights or warrants to
subscribe for or purchase Company Common Stock at less than the Current
Market Price. Further, such issuances shall not be deemed to constitute
an issuance of Company 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 13. No adjustment in the
Conversion Price will be required unless such adjustment would require
an increase or decrease of at least 1% of the Conversion Price, but any
adjustment that would otherwise be required to be made shall be carried
forward and taken into account in a subsequent adjustment.
(i) If any action would require adjustment of the Conversion
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
Debentures.
SECTION 13.5 Fundamental Change.
(a) In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does
not result in a reclassification, conversion, exchange or cancellation
of Company Common Stock), consolidation, sale of all or substantially
all of the assets of the Company, recapitalization or reclassification
of Company Common Stock (other than a change in par value, or from par
value to no par value, or from no par value to par value or as a result
of a subdivision or combination of Company Common Stock) or any
compulsory share exchange (each of the foregoing being referred to as a
"Transaction"), in each case, as a result of which shares of Company
Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a
Transaction involving a Common Stock Fundamental Change (and subject to
funds being legally available for such purpose under applicable law and
the time of such conversion), securities, cash or other property, each
Debenture shall thereafter be convertible into the kind and, in the case
of a Transaction which does not involve a Fundamental Change, amount of
securities, cash and other property receivable upon the consummation of
such Transaction by a holder of that number of shares of Company Common
Stock into which a Debenture was convertible immediately prior to such
Transaction, or (ii) in the case of a Transaction involving a Common
Stock Fundamental Change, common stock, each Debenture shall thereafter
be convertible (in the manner described herein) into common stock of the
kind received by holders of Company Common Stock (but in each case after
giving effect to any adjustment discussed in paragraphs (b) and (c)
relating to a Fundamental Change if such Transaction constitutes
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a Fundamental Change). The holders of Debentures or Preferred Securities
will have no voting rights with respect to any Transaction.
(b) If any Fundamental Change occurs, then the Conversion Price
in effect will be adjusted immediately after such Fundamental Change as
described in paragraph (c) below. In addition, in the event of a Common
Stock Fundamental Change, each Debenture shall be convertible solely
into common stock of the kind received by holders of Company Common
Stock as a result of such Common Stock Fundamental Change.
(c) The Conversion Price in the case of any Transaction involving
a Fundamental Change will be adjusted immediately after such Fundamental
Change:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Debentures will thereupon become the
lower of (A) the Conversion Price in effect immediately prior to
such Non-Stock Fundamental Change, but after giving effect to any
other prior adjustments effected pursuant to the preceding
paragraphs, and (B) the result obtained by multiplying the
greater of the Applicable Price or the then applicable Reference
Market Price by a fraction of which the numerator will be $50 and
the denominator will be (x) the amount of the Redemption Price
for one Debenture if the Redemption Date were the date of such
Non-Stock Fundamental Change (or, for the period commencing on
the first date of original issuance of the Debentures and through
December 1, 1998, and the twelve-month periods commencing
December 1, 1998, December 1, 1999 and December 1, 2000, the
product of 105.250%, 104.725%, 104.200% and 103.675%,
respectively, multiplied by $50) plus (y) any then-accrued and
unpaid interest on one Debenture; and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Debentures in effect immediately prior to
such Common Stock Fundamental Change, but after giving effect to
any other prior adjustments effected pursuant to the preceding
paragraphs, will thereupon be adjusted by multiplying such
Conversion Price by a fraction of which the numerator will be the
Purchaser Stock Price and the denominator will be the Applicable
Price; provided, however, that in the event of a Common Stock
Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of common stock is common
stock of the successor, acquiror, or other third party (and cash,
if any, is paid only with respect to any fractional interests in
such common stock resulting from such Common Stock Fundamental
Change) and (B) all of common stock will have been exchanged for,
converted into, or acquired for common stock (and cash with
respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price of the Debentures in
effect immediately prior to such Common Stock Fundamental Change
will thereupon be adjusted by multiplying such Conversion Price
by a fraction of which the numerator will be one and the
denominator will be the number of shares of common stock of the
successor, acquiror, or other third party received by a holder of
one share of common stock as a result of such Common Stock
Fundamental Change.
SECTION 13.6 Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
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(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 Debentures; 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 Debentures at their last addresses as they appear upon the stock
transfer books of the Company and the Trust and the Securities
Registrar.
SECTION 13.7 Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend
payable in shares of Company Common Stock or (B) a dividend payable in
cash that would not require an adjustment pursuant to Section 13.4(c) or
(d) or (ii) authorize a tender or exchange offer that would require an
adjustment pursuant to Section 13.4(e);
(b) the Company shall authorize the granting to all holders of
Company 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;
(c) of any reclassification of Company Common Stock (other than a
subdivision or combination of the outstanding Company 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 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 Company Common Stock is converted into other securities, cash or
other property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under the
Trust Agreement, 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 of 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
15 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 Company 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 Company Common Stock of record shall be entitled to exchange their
shares of Company
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Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
SECTION 13.8 Certain Additional Rights. In case the Company shall, by
dividend or otherwise, declare or make a distribution on its Company Common
Stock referred to in Section 13.4(c) or 13.4(d) (including, without limitation,
dividends or distributions referred to in the last sentence of Section 13.4(c)),
the Holders of the Debentures, upon the conversion thereof subsequent to the
close of business on the date fixed for the determination of stockholders
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 Company Common Stock into which the
Debentures are converted, the portion of the shares of Company Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash and
assets so distributed applicable to one share of Company 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 Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Company Common Stock
which the Holder of Debentures 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 Company 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 Company Common Stock is then traded and (ii) requires payment or delivery
of such shares of Company 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 Company Common Stock
receiving such distribution.
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion.
(a) Shares of Company Common Stock to be issued upon conversion
of a Debenture in respect of Restricted Preferred Securities shall bear
such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Company Common Stock to be issued upon
conversion of a Debenture 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 Company
Common Stock are to be registered must deliver to the Conversion Agent a
certificate satisfactory to the Company and signed by such Person, as to
compliance with the restrictions on transfer applicable to such
Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of the
Holder shares of Company Common Stock issued upon conversion
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of any such Debenture in respect of such Preferred Securities not so
accompanied by a properly completed certificate.
SECTION 13.10 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 Debenture or to any holder of a
Preferred 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 Company
Common Stock or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Debenture; 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
Company Common Stock or stock certificates or other securities or property upon
the surrender of any Debenture for the purpose of conversion, or, except as
expressly herein provided, to comply with any of the covenants of the Company
contained in Article 10 or this Article 13.
* * * *
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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.
NEWELL CO.
By: /s/ Dale L. Matschullat
--------------------------------------------
Name: Dale L. Matschullat
------------------------------------------
Title: Vice President
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THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Joanne Adamis
--------------------------------------------
Name: Joanne Adamis
------------------------------------------
Title: Vice President
-----------------------------------------
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