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EXHIBIT 4.1
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RENT-WAY, INC.
$23,000,000
7% Convertible Subordinated Debentures due 2007
INDENTURE
Dated as of February 4, 1997
MANUFACTURERS AND TRADERS TRUST COMPANY,
AS TRUSTEE
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CROSS-REFERENCE TABLE
RENT-WAY, INC.
Trust Indenture
Act Section Indenture
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ss.310(a)(1) 7.10; 12.1
(a)(2) 12.1
(a)(3) 12.1
(a)(4) 12.1
(a)(5) 12.1
(b) 7.10; 12.1
(c) 12.1
ss.311(a) 7.11; 12.1
(b) 7.11; 12.1
(c) 12.1
ss.312(a) 12.1
(b) 12.1; 12.3
(c) 12.1; 12.3
ss.313(a) 7.6; 12.1
(b) 7.6; 12.1
(c) 7.6; 12.1
(d) 7.6; 12.1
ss.314(a) 4.2; 12.1
(b) 12.1
(c) 12.1
(d) 12.1
(e) 12.1
(f) 12.1
ss.315(a) 7.1; 12.1
(b) 7.1; 12.1
(c) 7.1; 12.1
(d) 7.1; 12.1
(e) 7.1; 12.1
ss.316(a) 7.1; 12.1
(b) 7.1; 12.1
(c) 7.1; 12.1
ss.317(a) 12.1
(b) 12.1
ss.318(a) Not Applicable
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of February 4, 1997 by and between Rent-Way, Inc.,
a Pennsylvania corporation (the "Company"), and Manufacturers and Traders Trust
Company, a New York banking corporation, as trustee ("Trustee").
RECITALS OF THE COMPANY
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 7%
Convertible Subordinated Debentures due 2007 (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, Conversion Agent,
co-registrar or agent for service of notices and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or State law for the relief of debtors.
"Board of Directors of the Company" means the Board of Directors of
the Company or any committee of the Board of Directors of the Company.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock, in the case of corporation, or partnership interests or other
equivalents (however designated) in the case of a partnership or common shares
of beneficial interest or other equivalents (however designated) in the case of
a trust.
"Closing Price" means with respect to the shares of Capital Stock of
the Company on any day, (i) the reported last sale price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the NASDAQ National
Market, or (ii) if the shares of Capital Stock are not listed or admitted to
trading on the NASDAQ National Market, the reported last sale price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the
principal national securities exchange
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on which the shares of Capital Stock are listed or admitted to trading, or
(iii) if the shares of Capital Stock are not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at Buffalo, New York.
"Custodian" means any receiver, trustee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Dollar" or "$" means the lawful money of the United States of
America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Security Register.
"Indebtedness" as applied to any Person, means, without duplication:
(i) all indebtedness for borrowed money whether or not evidenced by a
promissory note, draft or similar instrument; (ii) that portion of obligations
with respect to any lease that is properly classified as a liability on a
balance sheet in accordance with generally accepted accounting principles;
(iii) notes payable and drafts accepted representing extensions of credit; (iv)
any balance owed for all or any part of the deferred purchase price of property
or services, which purchase price is due more than six months from the date of
incurrence of the obligation in respect thereof (except any such balance that
constitutes (a) a trade payable or an accrued liability arising in the ordinary
course of business or (b) a trade draft or note payable issued in the ordinary
course of business in connection with the purchase of goods or services), if
and to the extent such debt would appear as a liability upon a balance sheet of
such Person prepared in accordance with generally accepted accounting
principles; (v) any debt of others described in the preceding clauses (i)
through (iv) which such Person has guaranteed or for which it is otherwise
liable; and (vi) any deferral, amendment, renewal, extension, supplement or
refunding of any of the foregoing indebtedness; provided, however, that, in
computing the "Indebtedness" of any Person, there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof and at the
time of determination of such indebtedness, there shall have been deposited
with a depository in trust money (or evidences of indebtedness if permitted by
the instrument creating such indebtedness) in the necessary amount to pay,
redeem or satisfy such indebtedness as it becomes due, and the amount so
deposited shall not be included in any computation of the assets of such
Person.
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"Indenture" means this Indenture as amended or supplemented from time
to time.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant
Controller of the Company. See Sections 12.4 and 12.5.
"Opinion of Counsel" means a written opinion from ▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Goodyear LLP or any other legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 12.4 and 12.5.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government (or any agency, instrumentality or political subdivision
thereof).
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
as specified in the form of Security annexed hereto as Exhibit A.
"Registration Statement" means the registration statement that the
Company is required to file with the Securities and Exchange Commission
pursuant to that certain Registration Rights Agreement, dated as of February 4,
1997, by and between the Company and the Holders from time to time of the
Securities.
"Restricted Security", means the Securities, upon original issuance
thereof, and all Securities issued upon registration of transfer thereof or in
exchange therefor, and at all times subsequent thereto, until, in the case of
any such Securities the earlier of the following: (i) such Securities have been
effectively registered under Section 5 of the Securities Act and disposed of in
accordance with a registration statement covering them or (ii) such Securities
have been distributed to the public pursuant to Rule 144 of the Securities Act
(or any similar provisions then in force). When any Security which is a
Restricted Security ceases to be a Restricted Security, such Restricted
Security shall no longer be subject to the transfer restrictions as imposed by
Section 2.5(2) hereof.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities" means the securities in the form of Exhibit A hereto that
are issued under this Indenture as amended or supplemented from time to time.
"Senior Indebtedness" means the principal, premium, if any, and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification
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obligations, and all other amounts payable under or in respect of Indebtedness
of the Company, whether any such Indebtedness exists as of the date of this
Indenture or shall hereafter be created, incurred, assumed or guaranteed,
including without limitation those obligations pursuant to (i) the Credit
Agreement, dated as of November 22, 1996, by and among the Company, National
City Bank of Pennsylvania, as agent and the other banks named therein, and (ii)
the Company's 10% Convertible Subordinated Notes due July 15, 2002, as may be
amended from time to time and any renewals, extensions, refundings, amendments
and modifications of any such indebtedness or obligations or of the instruments
creating or evidencing such indebtedness or obligations or guarantees;
provided, however, that Senior Indebtedness shall not include (A) Indebtedness
owed to a Subsidiary, (B) Indebtedness of the Company which is expressly pari
passu to the Securities or (C) Subordinated Indebtedness.
"Subordinated Indebtedness" means the principal, premium, if any, and
interest on any Indebtedness of the Company which by its terms is expressly
subordinated in right of payment to the Securities.
"Subsidiary" means a Person the majority of whose voting stock is
owned by the Company or a subsidiary of the Company. Voting stock is Capital
Stock having voting power under ordinary circumstances to elect directors or
similar positions.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa
- 77bbbb) as amended by the Trust Indenture Reform Act of 1990 and as in effect
on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Trust Officer", when used with respect to the Trustee, means an
officer of the Trustee customarily performing functions in corporate trust
matters or any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"United States" means the United States of America.
SECTION 1.2 Other Definitions.
Term Defined in Section
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"Common Stock" 10.1
"Company Order" 2.2
"Conversion Agent" 2.3
"conversion price" 10.1
"current market price" 10.4
"DTC" 2.3
"Depository" 2.3
"Event of Default" 6.1
"Legal Holiday" 12.8
"Paying Agent" 2.3
"Payment or Distribution" 11.1
"Registered Accredited
Investor Securities" 2.1
"Registrar" 2.3
"Rule 144A Securities" 2.1
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"Rule 13e-3 Transaction" 10.6
"Security Register" 2.3
"U.S. Government Obligations" 8.1
SECTION 1.3 Incorporation by Reference to Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rules have
the meanings assigned to them therein.
SECTION 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted
accounting principles in effect as of the time as to which such
accounting principles are to be applied;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the
plural include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form; Dating; Incorporation of Form in Indenture.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $23,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Sections
2.3, 2.5, 2.6, 2.8, 3.6, 9.5 or 10.1.
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The Securities shall be known and designated as the 7% Convertible
Subordinated Notes Due 2007 of the Company. Their fixed maturity shall be
February 1, 2007, and they shall bear interest at the rate per annum of 7%,
from and including the date of issuance thereof until maturity or earlier
redemption, payable semiannually on February 1 and August 1 commencing August
1, 1997, until the principal thereof is paid or made available for payment.
The principal of and premium, if any, and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, the City of New York or the City of Buffalo maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article 3.
The Securities shall be subordinated in right of payment to Senior
Indebtedness, to the extent provided in Article 11.
The Securities shall be convertible as provided in Article 10.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A which is incorporated in and made
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rules, agreements to which the
Company is subject, or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on them. Each Security shall
be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
The Securities (the "Rule 144A Securities") issued to "qualified
institutional buyers"(as such term is defined in Rule 144A under the Securities
Act) will initially be issued in the form of a global Security in the aggregate
principal amount of the Rule 144A Securities, which Security shall be in
substantially the form of Exhibit A hereto, including the paragraphs referred
to in footnotes 1 and 2, and is hereinafter referred to as the "Rule 144A
Global Security."
All other Securities will be issued in fully registered form in
denominations of U.S. $1,000 and integral multiples thereof, which Securities
shall be in substantially the form of Exhibit A hereto, excluding the
information called for by footnote 1 thereto but including the information
called for by footnote 2 thereto, and are hereinafter collectively referred to
as "Registered Accredited Investor Securities."
SECTION 2.2 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
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If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.9, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $23,000,000 upon the execution of the
Indenture and a written order or orders of the Company signed by two Officers
or by an Officer and an Assistant Treasurer of the Company (a "Company Order").
The aggregate principal amount of the Securities outstanding at any time may
not exceed that amount.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
The Securities shall be issuable only in registered form without
coupons. The Securities shall be issuable only in denominations of $1,000
principal amount and any whole multiples thereof.
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SECTION 2.3 Registrar and Agents.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent"), an
office or agency where Securities may be presented for conversion ("Conversion
Agent") and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities (the "Security Register") and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional Paying Agents and one or more additional Conversion
Agents. The Company or any Subsidiary may act as Paying Agent and/or Conversion
Agent. The term "Paying Agent" includes any additional paying agent and the
term "Conversion Agent" includes any additional conversion agent.
The Company may change any Paying Agent, Registrar, Conversion Agent
or Co-Registrar on sixty (60) days' prior written notice to the Trustee. The
Company shall notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar, Paying Agent, Conversion
Agent or agent for service of notices and demands, or fails to give the
foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent,
Conversion Agent and agent for service of notices and demands.
With respect to the Securities issuable or issued in whole or in part
in the form of Rule 144A Global Securities, the Company hereby appoints The
Depository Trust Company ("DTC"), at present located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ as the depository for the Rule 144A Global Securities
upon the terms and subject to the conditions herein set forth. (DTC and its
successor or successors as such depository are herein called the "Depository.")
SECTION 2.4 Paying Agent to Hold Money in Trust.
At least one Business Day prior to each due date of the principal of,
premium if any, and interest on any Securities, the Company shall deposit with
each Paying Agent a sum sufficient to pay such principal, premium, if any, and
interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that it will hold in trust for the benefit
of Holders of Securities or the Trustee all money held by the Paying Agent for
the payment of principal of, premium if any, or interest on the Securities and
to notify the Trustee of any default by the Company (or any other obligor on
the Securities) in making any such payment. If the Company or a Subsidiary acts
as Paying Agent, it shall on or before each due date of the principal of,
premium, if any, or interest on any Securities segregate the money and hold it
as a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and the Trustee may at any time during
the continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to forthwith pay to the Trustee all sums so held in
trust by such Paying Agent. Upon doing so, the Paying Agent (if other than the
Company or a Subsidiary thereof) shall have no further liability for the money.
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The final installment of principal of and premium, if any, on this
Security shall be payable only upon surrender of this Security at the office or
agency of the Company maintained for such purpose. Payments of principal of and
premium, if any, and interest on this Security shall be made at the office or
agency of the Company maintained for such purpose, or, in the case of any such
payments other than the final payment of principal and premium, if any, at the
Company's option, by check mailed to the Person entitled thereto at such
Person's address last appearing on the Security Register maintained by the
Registrar.
SECTION 2.5 Transfer and Exchange.
(1) When a Security is presented to the Registrar or a co-registrar
with a request to register the transfer thereof, the Registrar or co-registrar
shall register the transfer as requested, and when Securities are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall make the exchange as requested provided that every Security represented
or surrendered for registration of transfer or exchange shall be duly endorsed
and accompanied by a written instrument of transfer satisfactory to the Company
and the Registrar duly executed by the Company or such Holder's
attorney-in-fact duly authorized in writing; provided, further, that the
Registrar or co-registrar, as the case may be, shall not register the transfer
of such Security if such Security is a Restricted Security unless the
conditions in Section 2.5(2) hereof shall have been satisfied. The Holder of
each Security, including each Restricted Security, by such Holder's acceptance
thereof, agrees to be bound by the transfer restrictions set forth herein and
in the legend on such Security.
(2) Whenever any Restricted Security is presented or surrendered for
registration of transfer or exchange for a Security registered in a name other
than that of the holder, no registration of transfer or exchange shall be made
unless:
(a) The registered Holder presenting such Restricted
Security for transfer shall have certified to the Trustee in writing
that the registered Holder is transferring the Restricted Security to
the Company;
(b) The Trustee has received written certification from the
registered Holder, and a written opinion of counsel acceptable in form
and substance to the Company and the Trustee, indicating that the
transfer is being made pursuant to an available exemption from, or a
transaction not otherwise subject to, the registration requirements of
the Securities Act; or
(c) In the case of Rule 144A Securities, the registered
Holder presenting such Restricted Security for transfer shall have
certified to the Trustee in writing that such registered Holder is
transferring such Restricted Securities to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in
compliance with the exemption from registration as provided by Rule
144A under the Securities Act.
For purposes of this Section 2.5(2), such certification to the Trustee
in writing shall be in the form of the Transfer Notice set forth on the reverse
of such Security.
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(3) Each certificate evidencing Restricted Securities shall bear
a legend in substantially the following form:
THIS SECURITY HAS BEEN ACQUIRED BY THE HOLDER FOR THE PURPOSE OF
INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION. THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO RENT-WAY, INC.,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) IN THE CASE OF A HOLDER WHO IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, OR (D) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT OR
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (AND CONFIRMED IN AN OPINION OF
COUNSEL ACCEPTABLE IN FORM AND SUBSTANCE TO THE ISSUER OF THIS
SECURITY IF THE ISSUER SO REQUESTS) AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE.
The above legend may be removed from a certificate when it no longer evidences
a Security which is a Restricted Security.
(4) To permit registrations of transfers and exchanges, the Company
shall issue and the Trustee or any authenticating agent shall authenticate
Securities at the Registrar's or co-registrar's request. No service charge
shall be made for any registration of transfer or exchange of Securities but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, but this provision
shall not apply to any exchange pursuant to Section 2.8, 3.6, 9.5 or 10.2 not
involving any transfer.
(5) The Registrar shall not be required (i) to issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.2 and ending at the close of business on the day of selection,
or (ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
(6) Any Restricted Security as to which the restrictions on transfer
set forth in Section 2.5(2) hereof shall have expired in accordance with their
terms or shall have terminated may, upon surrender of such Restricted
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Security for exchange to the Trustee in accordance with the provisions of this
Section 2.5(6) (accompanied, in the event that such restrictions on transfer
have terminated by reason of a transfer pursuant to Rule 144 (or any successor
provision), by an opinion of counsel reasonably acceptable to the Company,
addressed to the Company and the Trustee and in form and scope satisfactory to
the Company, to the effect that the transfer of such Restricted Security has
been made in compliance with Rule 144 (or such successor provision)), be
exchanged for a new Security, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by Section 2.5(3) hereof.
The Company shall promptly inform the Trustee in writing of the effective date
of any registration statement registering the Securities under the Securities
Act.
(7) If the Security so surrendered for exchange is a Registered
Accredited Investor Security and the Holder thereof requests in writing that
such Registered Accredited Investor Security be exchanged for an interest in
the Rule 144A Global Security, such Registered Accredited Investor Security
will be exchangeable into an equal aggregate principal amount of beneficial
interests in the Rule 144A Global Security; provided, however, that, if such
Registered Accredited Investor Security is a Restricted Security, such exchange
may only be made if such Holder certifies to the Trustee in writing that such
Holder is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) by completing the Transfer Notice on the reverse of such
Security. Upon any exchange as provided in the immediately preceding sentence,
the Trustee shall cancel such Registered Accredited Investor Security and
cause, or direct any custodian for the Rule 144A Global Security to cause, in
accordance with the standing instructions and procedures existing between the
Depository and any such custodian, the aggregate principal amount of Securities
represented by the Rule 144A Global Security to be increased accordingly. If no
Rule 144A Global Securities are then outstanding, the Company shall issue and
the Trustee shall authenticate a new Rule 144A Global Security in the
appropriate principal amount.
Any person having a beneficial interest in a Rule 144A Global Security
may upon request exchange such beneficial interest for a Registered Accredited
Investor Security only as provided in this paragraph. Upon receipt by the
Company and the Trustee of (i) written instructions (or such other form of
instructions as is customary) on behalf of any person having a beneficial
interest in a Rule 144A Global Security and (ii) in the case of a Restricted
Security, the following additional information and documents (all of which may
be submitted by facsimile):
(A) if such beneficial interest is being transferred to
the person designated as being the beneficial owner,
a certification to that effect from such person; or
(B) if such beneficial interest is being transferred to
a person other than the person designated as being
the beneficial owner, the provisions of Section 3(b)
hereof have been satisfied;
in which case the Trustee or any custodian for the Rule 144A Global Security,
at the direction of the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depository and such custodian,
cause the aggregate principal amount of the Rule 144A Global Security to be
reduced accordingly and, following such reduction, the Company shall execute
and the Trustee shall authenticate and deliver to
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the transferee a Registered Security in the appropriate principal amount and,
if such Security is a Restricted Security, including the appropriate legend.
Securities issued in exchange for a beneficial interest in the Rule 144A Global
Security pursuant to this paragraph shall be registered in such names and in
such authorized denominations as shall be instructed to the Trustee. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
(8) Notwithstanding any other provision of this Agreement (other than
the provisions set forth in Section 3(c) hereof), the Rule 144A Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.
(9) If at any time either (i) the Depository for the Rule 144A Global
Security notifies the Company that the Depository is unwilling or unable to
continue as Depository for the Rule 144A Global Security and a successor
Depository for the Rule 144A Global Security is not appointed by the Company
within 90 days after delivery of such notice, or (ii) the Company, at its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of Registered Securities under this Indenture, then the Company shall
execute, and the Trustee shall authenticate and deliver, Registered Securities
in an aggregate principal amount equal to the principal amount of the Rule 144A
Global Security in exchange for such Rule 144A Global Security.
(10) At such time as all beneficial interests in the Rule 144A Global
Security have either been exchanged for Registered Securities, redeemed,
repurchased or canceled, the Rule 144A Global Security shall be returned to or
retained and canceled by the Trustee. At any time prior to such cancellation,
if any beneficial interest in the Rule 144A Global Security is exchanged for
Registered Securities, redeemed, repurchased or canceled, the principal amount
of Securities represented by the Rule 144A Global Security shall be reduced
accordingly and an endorsement shall be made on the Rule 144A Global Security,
by the Trustee or any custodian therefor, at the direction of the Trustee, to
reflect such reduction.
(11) The transfer and exchange of the Rule 144A Global Security or
beneficial interests therein shall be effected through the Depository, in
accordance with this Indenture and the procedures of the Depository therefor,
which shall include restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act.
SECTION 2.6 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a new Security in
replacement of and substitution for such Security if the requirements of the
Trustee and the Company are met. An indemnity bond may be required by the
Company or the Trustee that is sufficient in the judgment of the Company to
protect the Company and is sufficient in the judgment of the Trustee to protect
the Trustee or any Agent from any loss which it may suffer if a Security is
replaced pursuant to this Section 2.6. The Company and the Trustee may charge
for its expense in replacing a Security.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its sole
discretion may, instead of issuing a new Security, pay or authorize the payment
or convert or authorize the conversion of such Security.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
SECTION 2.7 Outstanding Securities.
Securities outstanding at any time are all Securities theretofore
authenticated and delivered under this Indenture except: (a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and (b) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Issuer; provided, that in determining whether the Securityholders of the
requisite principal amount of outstanding Securities are present at a meeting
of Securityholders for quorum purposes or have voted or taken or concurred in
any action under this Indenture, including the making of any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such determination as to the presence of a quorum or upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Trust Officer of the Trustee actually knows to be so owned
shall be disregarded.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or a Subsidiary) holds on
a Redemption Date or maturity date money deposited with it by or on behalf of
the Company sufficient to pay the principal of, premium, if any, and accrued
interest on Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.8 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have non-material variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in
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exchange for temporary Securities upon written order of the Company signed by
two Officers. Until so exchanged, temporary Securities represent the same
rights as definitive Securities. Upon request of the Trustee, the Company shall
provide a certificate to the effect that the temporary Securities meet the
requirements of the second sentence of this Section 2.8.
SECTION 2.9 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange, payment or conversion. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment or conversion and destroy canceled
Securities and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee in writing prior to such destruction to deliver
canceled Securities to the Company. Subject to Sections 2.6, 3.6 and the second
paragraph of Section 10.2, the Company may not issue Securities to replace
Securities that it has previously paid or delivered to the Trustee for
cancellation or that a Securityholder has converted pursuant to Article 10
hereof.
SECTION 2.10 Defaulted Interest.
If the Company defaults in a payment of interest on Securities, it
shall pay the defaulted interest to the Persons who are Holders of the
Securities on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest,
the Trustee shall fix the special record date and payment date. Each such
special record date shall be not less than 10 days prior to such payment date.
Each such payment date shall be not more than 60 days after the deposit by the
Company of money to pay the defaulted interest. At least 15 days before the
special record date, the Company shall mail to each Holder of a Security, with
a copy to the Trustee, a notice that states the special record date, the
payment date, and the amount of defaulted interest to be paid.
SECTION 2.11 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, a copy of which list shall be provided to the Company upon its
written request. If the Trustee is not the Registrar, the Registrar shall
furnish to the Trustee at least seven Business Days prior to each semiannual
interest payment date and at such other times as the Trustee may reasonably
request in writing a list in such form and as of such date as the Trustee may
require of the names and addresses of Securityholders upon which the Trustee
may conclusively rely. The Trustee may destroy any such list upon receipt of a
replacement list. The Paying Agent will solicit from each Securityholder a
certification of social security number or taxpayer identification number in
accordance with its customary practice and as required by law, unless the
Paying Agent is in possession of such certification. Each Paying Agent is
authorized to impose back-up withholding with respect to payments to be made to
Securityholders to the extent required by law.
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SECTION 2.12 Persons Deemed Owners.
Prior to registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 2.13 CUSIP Number.
The Company shall use a "CUSIP" number when issuing the Rule 144A
Securities, but shall not use a "CUSIP" number when issuing Registered
Accredited Investor Securities. The Trustee may use the CUSIP number in notices
of redemption or exchange as a convenience to Securityholders; provided that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Securities and
that reliance may be placed only on the other identification numbers printed on
the Securities.
ARTICLE 3
REDEMPTION
SECTION 3.1 Notices to Trustee.
If the Company wants to redeem the Securities pursuant to the optional
redemption provisions of Paragraph 5 of the Securities, it shall notify the
Trustee of the Redemption Date and the principal amount of Securities to be
redeemed. The notice shall be in writing and accompanied by an Officers'
Certificate stating that the redemption complies with the provisions of this
Indenture. Redemptions provided for in Paragraph 5 of the Securities shall be
effected as provided in said Paragraph 5 or as otherwise agreed upon by the
Company and the Trustee.
SECTION 3.2 Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by any other method
that the Trustee considers fair and appropriate under the circumstances. The
Trustee shall promptly notify the Company of the Securities to be so called for
redemption. The Trustee shall make the selection from Securities outstanding
and not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000 principal amount. Securities and portions of them it selects shall be in
principal amounts of $1,000 or multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee's selection of Securities for
redemption by any method authorized by this Section 3.2 shall be conclusively
deemed reasonable.
Upon any redemption of less than all the Securities, the Company and
the Trustee, for the purpose of selecting Securities to be redeemed, may treat
as outstanding any Securities surrendered for conversion during the period of
15 days next preceding the selection of the Securities and need not treat as
outstanding any Security authenticated and delivered during
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such period in exchange for the unconverted portion of any Security converted
in part during such period.
SECTION 3.3 Notice of Redemption by the Company.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed, with a copy to the Trustee.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Paying Agent and the
Conversion Agent;
(5) that Securities called for redemption may be converted at
any time before the close of business on the Redemption Date and, if
not converted prior to the close of business on the Redemption Date,
the right of conversion will be lost;
(6) that Holders who want to convert Securities must satisfy
the requirements of Paragraph 7 thereof;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(8) that interest on Securities called for redemption ceases
to accrue on and after the Redemption Date; and
(9) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new Security
or Securities in principal amount equal to the unredeemed portion
thereof will be issued.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. If a CUSIP
number is listed in such notice or printed on the Security, the notice shall
state that no representation is made as to the correctness or accuracy of such
CUSIP number.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the applicable Redemption Date and at the applicable
Redemption Price. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date.
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SECTION 3.5 Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust or cause such Subsidiary to segregate and hold in
trust) in immediately available funds money sufficient to pay the Redemption
Price of and accrued interest on all Securities to be redeemed on that date.
The Trustee or the Paying Agent shall return to the Company any money so
deposited not required for that purpose.
SECTION 3.6 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder, at the expense of the Company, a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of the Securities.
The Company shall pay the principal of, premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities and
this Indenture. An installment of principal, premium, if any, or interest shall
be considered paid on the date it is due if the Trustee or Paying Agent (if
other than the Company or a Subsidiary) holds on that date money designated for
and sufficient to pay the installment. The Company shall pay interest on
overdue principal and premium, if any, at the rate borne by the Security; it
shall pay interest, including post-petition interest in the event of a
proceeding under any Bankruptcy Law, on overdue installments of interest at the
same rate to the extent lawful.
SECTION 4.2 Commission Reports.
The Company shall file with the Trustee, promptly after filing with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. The Company shall also comply with the other provisions of TIA
ss. 314(a).
So long as the Securities remain outstanding, the Company shall cause
its annual reports to shareholders (containing audited financial statements)
and any other financial reports furnished by it to shareholders to be mailed to
the Holders at their addresses appearing in the Security Register maintained by
the Registrar.
For so long as any of the Rule 144A Securities remain outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) of the Exchange Act,
make available to any holder or beneficial holder of securities which continue
to be restricted securities in connection with any sale thereof to any
prospective purchase of such securities from such holder or beneficial
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holder, the information specified in, and meeting the requirements of the Rule
144A(d)(4) under the Securities Act.
SECTION 4.3 Waiver of Stay, Extension or Usury Laws.
The Company expressly waives (to the extent that it may lawfully do
so) any stay or extension law or any usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of,
premium, if any, or interest on Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that 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.
SECTION 4.4 Notice of Default.
The Company will, so long as any Securities are outstanding, deliver
to the Trustee, within 10 days of becoming aware of any Default or Event of
Default in the performance of any covenant, agreement or condition in this
Indenture, an Officers' Certificate specifying such Default or Event of
Default, the period of existence thereof and what action the Company is taking
or proposes to take with respect thereto.
SECTION 4.5 Compliance Certificates.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December
31), a written statement signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating, as
to each signer thereof:
(1) that a review of the activities of the Company during
such year and of performance under this Indenture has been made under
his or her supervision;
(2) that to the best of his or her knowledge, based on such
review, the Company has kept, observed, performed and fulfilled in all
material respects each and every condition and covenant contained in
this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status thereof;
and
(3) the conversion price (as described in Article 10 of this
Indenture) then in effect.
The Company will give the Trustee written notice of a change in the
fiscal year of the Company, within a reasonable time after such change is
effected.
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SECTION 4.6 Limitation on Dividends and Other Distributions.
The Company will not declare or pay any dividends or make any
distribution to holders of its Capital Stock (other than dividends or
distributions payable in Capital Stock of the Company), or purchase, redeem or
otherwise acquire or retire for value any of its Capital Stock or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value any of
the Company's Capital Stock if at the time of any of the afore-mentioned
actions an Event of Default has occurred and is continuing or would exist
immediately after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section 4.6 will
not prevent (i) the payment of any dividend within 60 days after the date of
declaration when the payment would have complied with the foregoing provisions
on the date of declaration; or (ii) the retirement of any shares of the
Company's Capital Stock by exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary) of, other shares of
its Capital Stock.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer all
or substantially all of its assets to, another Person in any transaction in
which the Company is not the continuing or surviving entity unless (i) the
resulting, surviving or transferee Person is a corporation which assumes by
supplemental indenture, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture; (ii) such
corporation is organized and existing under the laws of the United States, a
State thereof or the District of Columbia although it in turn may be owned by a
foreign entity; (iii) immediately after giving effect to such transaction no
Default or Event of Default shall have happened and be continuing and the
Officers' Certificate referred to in the following clause reflects that such
Officers are not aware of any such Default or Event of Default that shall have
happened and be continuing, and (iv) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture comply
with this Indenture, and thereafter all obligations of the Company shall
terminate.
SECTION 5.2 Successor Corporation or Trust Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer 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 has been
named as the Company herein; the Company shall thereupon be relieved of any
further obligation or liability hereunder or upon the Securities; and the
Company as the predecessor corporation may thereupon or at any time thereafter
be dissolved, wound up or liquidated. Such successor corporation thereupon may
cause to be signed, and may issue
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either in its own name or in the name of Rent-Way, Inc., any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the 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 Securities which previously shall have been signed and
delivered by the Officers to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all such Securities had been issued at the date of the
execution hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.
An "Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article 11 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order or any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security when the same becomes due and payable and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
or premium, if any, on any Security when the same becomes due and
payable at maturity, upon redemption or otherwise, and such default
continues for five Business Days;
(3) the Company fails to comply with any of its other
covenants, agreements or conditions in the Securities or this
Indenture and such default continues for the period and after the
notice specified in the last paragraph of this Section 6.1;
(4) there shall be a default under any bond, debenture, note
or other evidence of Indebtedness or under any mortgage, indenture or
other instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness of the Company or any
Subsidiary, whether any such Indebtedness now exists or shall
hereafter be created, if (a) either (i) such event of default results
from the failure to pay any such Indebtedness at maturity or (ii) as a
result of such event of default, the maturity of such Indebtedness has
been accelerated prior to its stated maturity and such acceleration
shall not be rescinded or annulled or the accelerated amount paid
within ten days after notice to the Company of such acceleration, or
such Indebtedness having been discharged and (b) the principal amount
of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal or interest
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thereon, or the maturity of which has been so accelerated, aggregates
$1,000,000 or more;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding,
(b) consents to the entry of an order for
relief against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(d) makes a general assignment for the benefit
of its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law:
(a) for relief against the Company in an
involuntary case or proceeding,
(b) appointing a Custodian of the Company or
for all or substantially all of its property, or
(c) ordering the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
A default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of a majority in principal amount
of the Securities then outstanding notify the Company and the Trustee in
writing, of the default and the Company does not cure the default within 60
days after receipt of such notice. The notice must specify the default, demand
that it be remedied and state that the notice is a "Notice of Default." The
Trustee shall give such notice to the Company only if directed to do so in
writing by the Holders of a majority in principal amount of the Securities then
outstanding. Such notice by the Trustee shall not be deemed to be a
certification by the Trustee as to whether an Event of Default has occurred.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.1(5) or 6.1(6) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of a majority in principal amount of the Securities
then outstanding by notice to the Company and the Trustee, may declare to be
due and payable immediately the principal amount of the Securities plus accrued
interest to the date of acceleration. Upon any such declaration, such amount
shall be due and payable immediately, and upon payment of such amount all of
the Company's obligations with respect to the Securities, other than
obligations under Section 7.7, shall terminate. If an Event of Default
specified in Section 6.1(5) or 6.1(6) occurs, all unpaid principal and accrued
interest on the Securities then outstanding shall become and be immediately due
and payable without any declaration or the act on the part of the Trustee or
any Holder. The Holders of a majority in principal amount of the outstanding
Securities by
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written notice to the Trustee may rescind an acceleration and its consequences
if (x) all existing Events of Default, other than the non-payment of the
principal of the Securities, which have become due solely by such declaration
of acceleration, have been cured or waived, (y) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal and premium, if any, which has become due otherwise than by
such declaration of acceleration, has been paid, and (z) the rescission would
not conflict with any judgment or decree of a court of competent jurisdiction.
The Trustee may rely upon such notice of rescission without any independent
investigation as to the satisfaction of conditions (x), (y) and (z).
SECTION 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of and premium, if any, or interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Defaults and Events of Default.
Subject to Section 9.2, the Holders of a majority in principal amount
of the Securities then outstanding, on behalf of all the Securityholders, by
written notice to the Trustee may waive a Default or Event of Default with
respect to the Securities and its consequences. When a Default or Event of
Default is waived, it is considered to be cured and ceases to exist; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.5 Control by Majority.
The Holders of a majority in principal amount of the Securities then
outstanding may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on it. The Trustee, however, may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Securityholders, it being understood
that (subject to Section 7.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Securityholders or that may involve the Trustee in personal liability or for
which the Trustee does not have adequate indemnification pursuant to Sections
7.1(5) and 7.2(6); provided that, the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
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SECTION 6.6 Rights of Holders to Receive Payment.
Subject to Article 11, notwithstanding any other provision of this
Indenture, the right of any Securityholder to receive payment of principal of,
premium, if any, and interest on the Security, on or after the respective due
dates expressed in the Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of
any Holder of any Security to convert such Security or to bring suit for the
enforcement of such right shall not be impaired or affected without the written
consent of the Holder.
SECTION 6.7 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal, and
premium, if any, specified in Section 6.1(1) or (2) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor on the Securities for the whole
amount of unpaid principal, and premium, if any, and accrued interest remaining
unpaid on the Securities, together with interest on overdue principal, and
premium, if any, and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate borne by
the Securities and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.8 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Securities allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same. Any Custodian in any such judicial proceeding is hereby authorized by
each Securityholder to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceedings.
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SECTION 6.9 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee amounts due under Section 7.7;
SECOND: to holders of any Senior Indebtedness as required by
Article 11; and
THIRD: to the Holders of the Securities for amounts due and unpaid
on the Securities for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if
any, and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 6.9.
SECTION 6.10 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorney's fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.10 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.6 or a suit by Holders of more than 10% in principal
amount of the Securities then outstanding or a suit by any holder of Senior
Indebtedness.
SECTION 6.11 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount
of the Securities at the time outstanding make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense
satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60
days after receipt of notice, the request and the offer of security or
indemnity; and
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(5) the Holders of a majority in aggregate principal amount
of the Securities at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
ARTICLE 7
TRUSTEE
SECTION 7.1 Duties of Trustee.
(1) The duties and responsibilities of the Trustee shall be as
provided by the TIA. If an Event of Default has occurred and is continuing, the
Trustee shall exercise its 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.
(2) Except during the continuance of an Event of Default and after the
curing or waiving of all such Events of Default which may have occurred:
(a) The Trustee need perform only those duties that are
specifically set forth in this Indenture, and the Trustee shall not be
liable except for the performance of such duties as are specifically
set forth in this Indenture, and no others, and no implied covenants
or obligation shall be read into this Indenture against the Trustee.
(b) 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 any statements
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. The Trustee, however, shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph (2)
of this Section 7.1.
(b) The Trustee shall not be liable for any error in judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(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
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exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2) and (3) of this Section 7.1 and
subject to Sections 315 and 316 of the TIA.
(5) Subject to subsection (3), the Trustee may refuse to perform any
duty or exercise any right or power unless, subject to the provisions of the
TIA, it receives indemnity satisfactory to it against any loss, liability,
expense or fee.
(6) The Trustee shall not be liable for interest on any money received
by it. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2 Rights of Trustee.
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall conform to
Section 12.5. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(3) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of such agents or attorneys
appointed with due care and shall not be responsible for their supervision.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers.
(5) The Trustee may consult with counsel of its choice and the written
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 the Trustee hereunder in good faith and reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
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SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, is subject to Sections
7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement of the Company in the Indenture or any statement in the
Securities other than its certificate of authentication or in any document used
in the sale of the Securities other than any statement in writing provided by
the Trustee expressly for use in such document.
SECTION 7.5 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to each Holder of
Securities notice of the Default or Event of Default within 90 days after it
becomes known to the Trustee. Except in the case of a default in payment of
principal of, premium, if any, or interest on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders of
Securities. Notwithstanding anything to the contrary expressed in this
Indenture, the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless and until a Trust Officer shall have actual knowledge
thereof, or shall have received written notice thereof from the Company at its
principal Corporate Trust Office as specified in Section 12.1. The Trustee
shall not be deemed to have actual knowledge of an Event of Default hereunder,
except in the case of an Event of Default under Sections 6.1(1) or 6.1(2)
(provided that the Trustee is the Paying Agent), until a Trust Officer receives
written notice thereof from the Company or any Securityholder that such a
Default or an Event of Default has occurred.
SECTION 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with May 15 of the first
year in which Securities are outstanding hereunder, the Trustee, if required by
the provisions of TIA ss. 313(a), shall mail to each Securityholder a brief
report dated as of January 15 of such year that complies with TIA ss. 313(a).
The Trustee also shall comply with TIA ss. 313(b), ss. 313(c) and ss. 313(d).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Securities and Exchange Commission and each securities
exchange, if any, on which the Securities are listed. The Company agrees to
notify the Trustee in writing whenever the Securities become listed or delisted
on or from any securities exchange.
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SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for its services (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust). The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses may include, but shall not be limited to,
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the Securities or the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity and the Company may elect by written notice to the
Trustee to assume the defense of any such claim at the Company's expense with
counsel reasonably satisfactory to the Trustee; provided, however, that if the
Trustee is advised by counsel that the interests of the Company and the Trustee
conflict, the Trustee shall have the right to retain separate counsel.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through the Trustee's
negligence or willful misconduct. The Company shall not be liable for any
settlement of any claim or action effected without the Company's consent, which
consent shall not be unreasonably withheld. To secure the Company's payment
obligations in this Section, the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1 occurs, the expenses and the compensation for
the services are intended to constitute expenses of administration under any
applicable bankruptcy or comparable law. The provisions of this Section shall
survive termination of this Indenture.
SECTION 7.8 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with
the Company's written consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the Securities then
outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall, upon payment of its fees and expenses, transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. Notwithstanding the
replacement of the Trustee pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it and
compensation earned by it prior to such replacement or otherwise or the
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities.
SECTION 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA ss. 310(b),
including the optional provision permitted by the second sentence of TIA ss.
310(b)(9).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Satisfaction, Discharge and Defeasance of the Securities.
The Company shall be deemed to have paid and discharged the entire
indebtedness on the Securities after the date of the deposit referred to in
paragraph (1) below, the provisions of this Indenture shall no longer be in
effect in respect of the Securities, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness; provided that the following conditions shall
have been satisfied:
(1) the Company has deposited or caused to be deposited with
the Trustee irrevocably as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders
of the Securities, with reference to this Section 8.1, (a) money or
(b) U.S. Government Obligations or (c) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on all the Securities for principal, premium, if any, and
interest, if any, to the maturity date of the Securities as such
principal, premium, if any, or interest becomes due and payable in
accordance with the terms of this Indenture and the Securities;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company in connection with all of the
Securities, including all fees and expenses of the Trustee; and
(3) the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire Indebtedness on the Securities and the
discharge of this Indenture and the termination of the Company's
obligations hereunder have been complied with.
"U.S. Government Obligations" means direct, non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the timely payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
SECTION 8.2 Satisfaction and Discharge of Indenture.
In addition to its rights under Section 8.1, the Company may terminate
all of its obligations under this Indenture when:
(1) all of the Securities theretofore authenticated and
delivered (other than (a) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
2.7 hereof and (b) Securities for whose payment money has theretofore
been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 2.4
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and Section 8.6 hereof) have been delivered to the Trustee for
cancellation; and
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company in connection with the outstanding
Securities, including all fees and expenses of the Trustee.
SECTION 8.3 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture
pursuant to Section 8.1, the respective obligations of the Company specified in
Sections 2.3, 2.4, 2.5, 2.6, 2.11, 4.1, 7.7, 8.5, 8.6, 8.7 and in Article 10
shall survive until the Securities are no longer outstanding, and after the
Securities are no longer outstanding, or upon compliance with Section 8.2, only
the obligations of the Company in such Sections 7.7 and 8.6 shall survive.
Nothing contained in this Article 8 shall abrogate any of the obligations or
duties of the Trustee under this Indenture.
SECTION 8.4 Application of Trust Money.
(1) Subject to the provisions of Section 8.6, all money and U.S.
Government Obligations deposited with the Trustee for the Securities pursuant
to Section 8.1 or Section 8.2, and all money received by the Trustee in respect
of U.S. Government Obligations deposited with the Trustee for the Securities
pursuant to Section 8.1 or Section 8.2 shall be held in trust and reinvested by
the Trustee in (a) U.S. Government Obligations or (b) beneficial interests in
one or more mutual funds which invest solely in U.S. Government Obligations and
which are rated in the highest applicable rating category by a
nationally-recognized statistical rating organization in accordance with the
Company's written instructions and applied by the Trustee in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company or any Subsidiary
acting as Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, if any, and interest, if any, on the
Securities; but such money need not be segregated from other funds except to
the extent required by law. Money and U.S. Government Obligations so held in
trust are not subject to the subordination provisions of Article 11.
(2) The Trustee shall deliver or pay to the Company from time to time
upon the Company's written request any U.S. Government Obligations or money
held by it as provided in Section 8.1 or Section 8.2 which, in the written
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations, or money,
were deposited or received.
SECTION 8.5 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then
held by any Paying Agent under the provisions of this Indenture shall, upon
written demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such Paying Agent shall be released from all further liability with
respect to such monies.
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SECTION 8.6 Return of Unclaimed Monies.
Any monies deposited with or paid to the Trustee or any Paying Agent
for the Securities, or then held by the Company in trust, for the payment of
any principal, premium, if any, and interest, if any, on the Securities and not
applied but remaining unclaimed by the Holders of the Securities for two years
after the date upon which the principal of, premium, if any, and interest, if
any, on the Securities, as the case may be, shall have become due and payable,
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, be repaid to the Company by such
Trustee or any Paying Agent on written demand by the Company or (if then held
by the Company or any Affiliate) shall be discharged from such trust; and the
Holders of the Securities entitled to receive such payment shall thereafter
look only to the Company for the payment thereof; provided, however, that,
before being required to make any such repayment, the Trustee may, or shall at
the written request of the Company, at the expense of the Company, cause to be
published once in an authorized newspaper in the same city in which the place
of payment with respect to the Securities shall be located and in an authorized
newspaper in the City of New York, or mail to each such Holder, a notice (in
such form as may be deemed appropriate by the Trustee) that said monies remain
unclaimed and that, after a date named therein, any unclaimed balance of said
monies then remaining will be returned to the Company.
SECTION 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.1 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 8.4; provided,
however, that if the Company has made any payment of principal of, premium, if
any, or interest on the Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.1 Amendments and Waivers Without Consent of Holders.
The Company, when authorized by Board Resolution, and the Trustee at
any time and from time to time, may amend or supplement this Indenture, (any
such amendment or supplement to be in a form satisfactory to the Trustee) or
the Securities without notice to or consent of any Securityholder for any of
the following purposes:
(1) to comply with Section 5.1; or
(2) to provide for uncertificated Securities in addition to
or in place of certificated Securities; or
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(3) to cure any ambiguity, defect or inconsistency, or to
make any other change that does not adversely affect the interests of
the Holders of Securities in any material respect; or
(4) to add to the covenants of the Company, for the benefit
of the Holders or to surrender any right or power herein conferred
upon the Company; or
(5) to add any Event of Default.
The Trustee shall be entitled to receive upon request an Opinion of
Counsel to its satisfaction with respect to any supplement to this Indenture
without consent of the Holders that all conditions precedent have been
satisfied.
SECTION 9.2 Amendments and Waivers with Consent of Holders.
With the written consent of the Holders of not less than 66-2/3% in
aggregate principal amount of the Securities at the time outstanding, the
Company, when authorized by Board Resolution, and the Trustee may amend or
supplement this Indenture (any such amendment or supplement to be in a form
satisfactory to the Trustee) or the Securities for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities. The Holders of a majority in
principal amount of the Securities then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities without notice to any Securityholder. Subject to Section 9.4,
without the consent of each Holder of Securities affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4,
may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the fixed maturity of
any Security;
(4) waive (except unless theretofore cured) a default in the
payment of the principal of (and premium, if any on), interest on or
redemption amounts with respect to any Security;
(5) make any Security payable in currency other than that
stated in the Security;
(6) make any change in Sections 6.4, 6.6 or 9.2;
(7) make any change that adversely affects the right to
convert any Security; or
(8) make any change in Article 11 that adversely affects the
rights of any Securityholder.
To secure a consent of the Holders under this Section, it shall not be
necessary for the Holders to approve the particular form of any proposed
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amendment or waiver; rather, it shall be sufficient if such consent approves
the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment.
SECTION 9.3 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents.
Subject to this Indenture, each amendment, supplement or waiver
evidencing other action shall become effective in accordance with its terms.
Until an amendment, supplement or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder even if notation
of the consent is not made on any Security. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Security or portion of a
Security, if the Trustee receives the notice of revocation before the date the
amendment, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies) and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date unless consent from Holders of the
principal amount of Securities then outstanding required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, waiver or other action becomes effective, pursuant
to Section 9.1 or Section 9.2, as the case may be, it shall bind every Holder
of a Security.
SECTION 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may request the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determine, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms the cost and expense of which will be borne by the Company.
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SECTION 9.6 Trustee to Sign Amendments, etc.
The Trustee need not sign any amendment that adversely affects its
rights or interests, as determined by the Trustee in its sole discretion. In
signing or refusing to sign any amendment the Trustee shall be entitled to
receive and shall be fully protected in relying upon, an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture. The
Company may not sign an amendment until its Board of Directors approves it.
ARTICLE 10
CONVERSION OF SECURITIES
SECTION 10.1 Right of Conversion; Conversion Price.
Subject to the provisions of Section 7 of the Securities, the Holder
of any Security or Securities shall have the right, at such Holder's option, at
any time after the effective date of the Registration Statement and before the
close of business on February 1, 2007 (except that, with respect to any
Security or portion of a Security which shall be called for redemption, such
right shall terminate at the close of business on the Redemption Date fixed for
redemption of such Security or portion of a Security unless the Company shall
default in payment due upon redemption thereof), to convert, subject to the
terms and provisions of this Article 10, the principal of any such Security or
Securities or any portion thereof which is $1,000 principal amount or an
integral multiple thereof into shares of common stock of the Company, no par
value ("Common Stock"), initially at the conversion price per share of $13.37
or, in case an adjustment of such price has taken place pursuant to the
provisions of Section 10.4, then at the price as last adjusted (such price or
adjusted price being referred to herein as the "conversion price"), upon
surrender of the Security or Securities, the principal of which is so to be
converted, accompanied by written notice of conversion duly executed, to the
Company, at any time during usual business hours at the office or agency
maintained by it for such purpose, and, if so required by the Conversion Agent
or Registrar, accompanied by a written instrument or instruments of transfer in
form satisfactory to the Conversion Agent or Registrar duly executed by the
Holder or his duly authorized representative in writing. For convenience, the
conversion of any portion of the principal of any Security or Securities into
shares of Common Stock is hereinafter sometimes referred to as the conversion
of such Security or Securities.
SECTION 10.2 Issuance of Shares on Conversion.
As promptly as practicable after the surrender, as herein provided, of
any Security or Securities for conversion, the Company shall deliver or cause
to be delivered at its said office or agency, to or upon the written order of
the Holder of the Security or Securities so surrendered, certificates
representing the number of fully paid and nonassessable shares of Common Stock
into which such Security or Securities may be converted in accordance with the
provisions of this Article 10. Such conversion shall be deemed to have been
made as of the close of business on the date that such Security or Securities
shall have been surrendered for conversion by delivery thereof with a written
notice of conversion duly executed, so that the rights of the Holder of such
Security or Securities as a Securityholder
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shall cease at such time and, subject to the following provisions of this
paragraph, the Person or Persons entitled to receive the shares of Common Stock
upon conversion of such Security or Securities shall be treated for all
purposes as having become the record holder or holders of such shares of Common
Stock at such time and such conversion shall be at the conversion price in
effect at such time; provided, however, that no such surrender on any date when
the stock transfer books of the Company shall be closed shall be effective to
constitute the Person or Persons entitled to receive the shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
Person or Persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; and provided,
further, that in such event such conversion shall be at the conversion price in
effect on the date that such Security or Securities shall have been surrendered
for conversion by delivery thereof, as if the stock transfer books of the
Company had not been closed. The Company shall give or cause to be given to the
Trustee written notice whenever the stock transfer books of the Company shall
be closed.
Upon Conversion of any Security which is converted in part only, the
Company shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Company, a new Security
or Securities of authorized denominations in principal amount equal to the
unconverted portion of such Security.
SECTION 10.3 No Adjustment for Interest or Dividends.
No payment or adjustment in respect of interest on the Securities or
dividends on the shares of Common Stock shall be made upon the conversion of
any Security or Securities; provided, however, that if a Security or any
portion thereof shall be converted subsequent to any regular record date and on
or prior to the next succeeding interest payment date, the interest falling due
on such interest payment date shall be payable on such interest payment date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name such
Security is registered at the close of business on such regular record date and
Securities surrendered for conversion during the period from the close of
business on any regular record date to the opening of business on the
corresponding interest payment date must be accompanied by payment of an amount
equal to the interest payable on such interest payment date.
SECTION 10.4 Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Capital Stock of the Company in shares of Common
Stock, the conversion price in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such conversion price by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such determination.
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(2) In case the Company shall issue rights or warrants to all or
substantially all holders of its shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible
into or exchangeable for Common Stock) at a price per share (or having a
conversion or exchange price per share) less than the current market price per
share (determined as provided in paragraph (6) of this Section 10.4) of the
shares of Common Stock on the date fixed for the determination of shareholders
entitled to receive such rights or warrants, the conversion price in effect at
the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the
subscription price of the total number of shares of Common Stock so offered for
subscription or purchase (or the aggregate conversion of exchange price of the
convertible or exchangeable securities so offered) would purchase at such
current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. In the event that all of the shares of Common Stock subject to
such rights or warrants have not been issued when such rights or warrants
expire, then the conversion price shall promptly be readjusted to the
conversion price which would then be in effect had the adjustment upon the
issuance of such rights or warrants been made on the basis of the actual number
of shares of Common Stock issued upon the exercise of such rights or warrants.
For the purposes of this paragraph (2), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not
issue any rights or warrants in respect of shares of Common Stock held in the
treasury of the Company.
(3) In case the outstanding shares of Common Stock shall be subdivided
into a greater number of shares, the conversion price in effect at the opening
of business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares, the conversion price in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all or substantially all holders of shares of Common Stock evidences of
indebtedness or assets (including securities, but excluding any (a) rights or
warrants referred to in paragraph (2) of this Section 10.4, (b) any dividend or
distribution not prohibited by Section 4.6 hereof and (c) any dividend or
distribution referred to in paragraph (1) of this Section 10.4), the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the close of
business on the day fixed for the determination of shareholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share
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(determined as provided in paragraph (6) of this Section) of the shares of
Common Stock on the date fixed for such determination less the then fair market
value as determined by the Board of Directors of the Company (whose
determination shall be conclusive and described in a resolution of the Board of
Directors of the Company filed with the Trustee) of the portion of the assets
or evidences of indebtedness so distributed allocable to one share of Common
Stock and the denominator shall be such current market price per share of the
shares of Common Stock, such adjustment to become effective immediately prior
to the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such distribution.
(5) In case the shares of Common Stock shall be changed into the same
or a different number of shares of any class or classes of stock, whether by
capital reorganization, reclassification, or otherwise (other than a
subdivision or combination of shares or a stock dividend described in paragraph
(1) or (3) of this Section 10.4, or a consolidation, merger or sale of assets
described in Section 10.10), then and in each such event the Holders of
Securities shall have the right thereafter to convert such Securities into the
kind and amount of shares of stock and other securities and property receivable
upon such reorganization, reclassification or other change, by holders of the
number of shares of Common Stock into which such Securities might have been
converted immediately prior to such reorganization, reclassification or change.
(6) For the purpose of any computation under paragraphs (2) and (4)
for this Section, the current market price per share of Common Stock on any
date shall be deemed to be the average of the Closing Prices for the 15
consecutive Business Days selected by the Company commencing not more than 30
and not less than 20 Business Days before the date in question.
(7) No adjustment in the conversion price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (7)) would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
paragraph (7) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
paragraph (7) shall be made to the nearest cent.
(8) The Company may, but shall not be required to, make such
reductions in the conversion price, in addition to those required by paragraph
(1), (2), (3), (4) and (5) of this Section 10.4 as the Company's Board of
Directors considers to be advisable in order to avoid or diminish any income
tax to any holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax purposes
or for any other reasons. The Board of Directors shall have the power to
resolve any ambiguity or correct any error in the adjustments made pursuant to
this Section 10.4 and its actions in so doing shall be final and conclusive.
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(9) The adjustments provided for in this Section 10.4 shall be made
successively whenever any event listed above shall occur.
SECTION 10.5 Notice of Adjustment of Conversion Price.
Whenever the conversion price for the Securities is adjusted as herein
provided:
(1) the Company shall compute the adjusted conversion price
in accordance with Section 10.4 and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based and
the computation thereof, and such certificate shall forthwith be filed
at each office or agency maintained for the purpose of conversion of
the Securities pursuant to Section 2.4 and with the Trustee; and
(2) a notice stating that 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 Holders of the
Securities at their last addresses as they shall appear in the
Security Register.
(3) If the conversion price is adjusted and the Company fails
to file an Officers' Certificate with the Trustee as provided by
Section 10.5(1) and the Trustee is acting as the Conversion Agent, the
Trustee shall be entitled to rely conclusively on the conversion price
set forth in the Officer's Certificate most recently received by the
Trustee (or as set forth in the Securities and this Indenture if the
conversion price shall not have been adjusted).
SECTION 10.6 Notice of Certain Corporate Action.
(1) In case:
(a) the Company shall authorize the granting to holders of
its shares of Common Stock of rights or warrants entitling them to
subscribe for or purchase any shares of Capital Stock of any class or
of any other rights; or
(b) of any reclassification of the shares of Common Stock of
the Company, or of any consolidation or merger to which the Company is
a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of
the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of the Securities pursuant to Section 2.3 and
shall cause to be mailed to the Trustee and all Holders of the Securities at
their last addresses as they shall appear in the Security Register, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution,
rights or warrants, or, if a record is not to be taken, the date as of which
the Holders of shares of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such
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reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of shares of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Such notice shall also state
whether such transaction will result in any adjustment in the conversion price
applicable to the Securities and, if so, shall state what the adjusted
conversion price will be and when it will become effective. Neither the failure
to give the notice required by this Section, nor any defect therein, to any
particular Holder shall affect the sufficiency of the notice or the legality or
validity of any such dividend, distribution, right, warrant, reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution or winding-up,
or the vote on any action authorizing such with respect to the other holders.
(2) In case the Company or any Affiliate of the Company shall propose
to engage in a "Rule 13e-3 Transaction" as defined in the Commission's Rule
13e-3 under the Exchange Act, the Company shall, no later than the date on
which any information with respect to such Rule 13e-3 Transaction is first
required to be given to the Commission or any other Person pursuant to such
Rule 13e-3, cause to be mailed to all Holders at their last addresses as they
shall appear in the Security Register, a copy of all information required to be
given to the holders of the Company's Capital Stock pursuant to such Rule
13e-3. The information required to be given under this paragraph shall be in
addition to and not in lieu of any other information required to be given by
the Company pursuant to this Section 10.6 or any other provision of the
Securities or this Indenture.
SECTION 10.7 Taxes on Conversions.
The Company will pay any and all stamp or similar taxes that may be
payable in respect of the issuance or delivery of shares of Common Stock on
conversion of the Securities pursuant hereto. The Company shall not, however,
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of shares of Common Stock in a name other
than that of the Holder of the Security or Securities to be converted, and no
such issuance or delivery shall be made unless and until the Person requesting
such issuance has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
SECTION 10.8 Fractional Shares.
No fractional shares or scrip representing fractional shares shall be
issued upon any conversion of the Securities. If any such conversion would
otherwise require the issuance of a fractional share an amount equal to such
fraction multiplied by the current market price per share of Common Stock
(determined as provided in paragraph (6) of Section 10.4) on the day of
conversion shall be paid to the Holder in cash by the Company.
SECTION 10.9 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee or the Conversion Agent to be canceled by or at the direction of the
Trustee or the Conversion Agent, which shall dispose of the same as provided in
Section 2.10.
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SECTION 10.10 Provisions in Case of Consolidation, Merger or Sale of Assets.
(1) In case of any consolidation of the Company with, or merger of the
Company into, any Person, or in case of any merger of another Person into the
Company (other than a consolidation or merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock), or in case of any sale or transfer of all or substantially all
of the assets of the Company, the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing
that the Holder of each Security then outstanding shall have the right
thereafter, during the period such Security shall be convertible as specified
in Section 10.1 to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by a holder of the number of shares of Common Stock into which
such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 10. The above
provisions of this Section 10.10 shall similarly apply to successive
consolidations, mergers, sales or transfers.
(2) The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or securities or
property receivable by Holders upon the conversion of their Securities after
any such reclassification, change, consolidation, merger, sale or conveyance or
to any adjustment to be made with respect thereto.
SECTION 10.11 Disclaimer by Trustee of Responsibility for Certain Matters.
The Trustee and each Conversion Agent (other than the Company or any
Subsidiary) shall not at any time be under any duty or responsibility to any
Holder of the Securities to determine whether any facts exist which may require
any adjustment of the conversion price, how it should be calculated or what it
should be, 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. The Trustee and each
Conversion Agent (other than the Company or any Subsidiary) shall not be
accountable with respect to the validity, value, kind or amount of any shares
of Common Stock, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Security; and it makes no
representation with respect thereto. The Trustee and each Conversion Agent
(other than the Company or any Subsidiary) shall not be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion or, subject to Section 7.1, to comply
with any of the covenants of the Company contained in this Article 10.
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SECTION 10.12 Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from preemptive rights, out of its authorized shares of Common
Stock, solely for the purpose of issuance upon conversion of the Securities as
herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all outstanding Securities. The Company
covenants that all shares of Common Stock which shall be so issuable shall be,
when issued, duly and validly issued and fully paid and non-assessable. For
purposes of this Section 10.12, the number of shares of Common Stock which
shall be deliverable upon the conversion of all outstanding Securities shall be
computed as if at the time of computation all outstanding Securities were held
by a single holder.
ARTICLE 11
SUBORDINATION; SENIORITY
SECTION 11.1 Securities Subordinated to Senior Indebtedness.
(1) The Company agrees, and each Holder of the Securities by his
acceptance thereof likewise agrees, that the payment of the principal of,
premium, if any, and interest on the Securities (all of the foregoing, a
"Payment or Distribution") is subordinated and junior in right of payment, to
the extent and in the manner provided in this Article 11, except as provided in
Article 8, to the prior payment in full in cash of all Senior Indebtedness
whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed.
A Payment or Distribution shall include any asset of any kind or
character, and may consist of cash, securities or other property, by set-off or
otherwise, and shall include, without limitation, any purchase, redemption or
other acquisition of Securities or the making of any deposit of funds or
securities pursuant to this Indenture (including, without limitation, any
deposit pursuant to Article 8 hereof).
(2) The Senior Indebtedness of the Company shall continue to be Senior
Indebtedness and entitled to the benefit of these subordination provisions
irrespective of any amendment, modification or waiver of any term of any
instrument relating to refinancing of the Senior Indebtedness.
(3) All the provisions of this Indenture and the Securities shall be
subject to the provisions of this Article 11 so far as they may be applicable
thereto, except that nothing in this Article 11 shall apply to claims for, or
payments to, the Trustee under or pursuant to Section 7.7.
(4) No right of any holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be affected or
impaired by any failure to act on the part of the Company, any Paying Agent,
the Holders of the Securities, the Trustee or the holders of the Senior
Indebtedness, or by any noncompliance by the Company, any Paying Agent, the
Holders of the Securities or the Trustee with any of the terms, provisions and
covenants of the Securities or this Indenture, regardless of any knowledge
thereof that any such holder of Senior Indebtedness may have or be otherwise
charged with.
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SECTION 11.2 Company Not to Make Payments with Respect to Securities
in Certain Circumstances.
No Payment or Distribution shall be made by the Company, the Trustee
or any Paying Agent on account of principal of, premium, if any, or interest on
the Securities, whether upon stated maturity, upon redemption or acceleration,
or otherwise, or on account of the purchase or other acquisition of Securities,
whether upon stated maturity, upon redemption or acceleration, or otherwise, if
there shall have occurred and be continuing a default with respect to any
Senior Indebtedness permitting the acceleration thereof or with respect to the
payment of any Senior Indebtedness and (a) such default is the subject of a
judicial proceeding or (b) such events of default shall not have been cured or
waived and shall not have ceased to exist.
Upon any acceleration of the principal of the Securities or any
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash, or payment thereof provided
for to the satisfaction of the holders thereof, before any Payment or
Distribution is made on account of the redemption price or principal of (and
premium, if any) or interest on the Securities; and (subject to the power of a
court of competent jurisdiction to make other equitable provision, which shall
have been determined by such court to give effect to the rights conferred in
this Article upon the Senior Indebtedness and the holders thereof with respect
to the Securities or the Holders thereof or the Trustee, by a lawful plan of
reorganization or readjustment under applicable law) upon any such dissolution
or winding up or liquidation or reorganization, any Payment or Distribution by
the Company or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than securities of the Company
as reorganized or readjusted or securities of the Company or any other company,
trust or corporation provided for by a plan of reorganization or readjustment,
the payment of which is junior or otherwise subordinate, at least to the extent
provided in this Article 11 with respect to the Securities to the payment of
all Senior Indebtedness at the time outstanding and to the payment of all
securities issued in exchange therefor to the holders of the Senior
Indebtedness at the time outstanding, and the rights of the holders of Senior
Indebtedness of the Company are not altered by such plan of reorganization or
readjustment), to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 11, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such Payment or Distribution directly to the holders of
Senior Indebtedness of the Company or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all Senior
Indebtedness in full in cash, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any Payment
or Distribution is made to the Holders of the Securities or to the Trustee,
except that the Trustee will have a lien for the payment of its fees and
expenses.
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In the event that, notwithstanding the foregoing, any Payment or
Distribution by the Company of any kind or character, whether such payment
shall be in cash, property or securities, prohibited by the foregoing, and the
Company shall have made payment to the Trustee or the Holders of the Securities
before all Senior Indebtedness is paid in full in cash, or provision is made
for such payment to the satisfaction of the holders thereof, and if such fact
shall then have been or thereafter be made known to a Trust Officer of the
Trustee or, as the case may be, such Holder, then and in such event such
Payment or Distribution shall be paid over by the Trustee (if the Notice
required by Section 11.5 has been received by the Trustee) or such Holder or
delivered to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash, after giving effect to any concurrent Payment or
Distribution to or for the holders of such Senior Indebtedness, and, until so
delivered, the same shall be held in trust by any Holder of a Security as the
property of the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided in
Article 5 shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 11.2 if such other Person
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 5. Nothing in this Section shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.7.
The holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the obligations of the Holders of the Securities
hereunder to the holders of Senior Indebtedness: (i) change the manner, place
or terms of payment or change or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; (iv) apply any amounts received to any liability of the
Company owing to holders of Senior Indebtedness; and/or (v) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 11.3 Subrogation of Securities.
Subject to the payment in full in cash of all amounts then due
(whether by acceleration of the maturity thereof or otherwise) on account of
all Senior Indebtedness at the time outstanding, the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive Payments or Distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal of, premium,
if any, and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no Payments or
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Distributions to the holders of Senior Indebtedness to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article 11, and no payments over pursuant to the provisions of this Article 11
to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as between the Company, the Company's creditors other than
holders of Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article 11 are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
Nothing contained in this Article 11 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 11 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Nothing in this Article 11 shall prevent
conversions of Securities pursuant to Article 10.
Upon any payment or distribution of assets of the Company referred to
in this Article 11, the Trustee, subject to the provisions of Section 7.1, and
the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any dissolution,
winding up, liquidation or reorganization proceedings are pending, or
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 11.
SECTION 11.4 Authorization by Holders of Securities.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holder of the Security and the
holders of Senior Indebtedness, the subordination provided in this Article 11
and appoints the Trustee his attorney-in-fact for any and all such purposes
including, without limitation, to execute, verify, deliver and file any proofs
of claim which any holder of Senior Indebtedness may at any time require in
order to prove and realize upon any rights or claims pertaining to the
Securities and to effectuate the full benefit of the subordination contained
herein. Upon failure of the Trustee so to do, any such holder of Senior
Indebtedness shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of the Holder to execute, verify, deliver and file any such
proofs of claim; provided that no holder of
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Senior Debt shall incur any liability for any failure to exercise its right to
file any such proofs of claim.
SECTION 11.5 Notices to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to it which would prohibit the making of any payment of moneys to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article 11. Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article 11 unless and until a Trust Officer of the Trustee
shall have received at its Corporate Trust Office written notice thereof from
the Company or a holder or holders of Senior Indebtedness or from any trustee
or agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
Officer of the Trustee shall not have received at least three Business Days
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security) with respect to
such moneys the notice provided for in this Section 11.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have the full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness or a trustee or
agent on behalf of any such holder. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 11, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article 11, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 11.6 Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 11 in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 7.11 or elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior
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Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holder if it shall mistakenly pay over or
distribute to Holders of the Securities or the Company or any other Person
money or assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article 11 or otherwise.
SECTION 11.7 No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
the Trustee or the Holder of any of the Securities or by any act, or failure to
act, in good faith, by any such holder of Senior Indebtedness, or by any
noncompliance by the Company, the Trustee or the Holder of any of the
Securities with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
SECTION 11.8 Article 11 Not To Prevent Events of Default.
The failure to make a payment on account of principal of, premium, if
any, or interest on the Securities by reason of any provision in this Article
11 shall not be construed as preventing the occurrence of an Event of Default
with respect to such Securities under Section 6.1.
SECTION 11.9 Paying Agents other than the Trustee.
In any 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 11 shall in such case (unless the context
shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article 11 in addition to or in place of the
Trustee.
SECTION 11.10 Securities Senior to Subordinated Indebtedness.
The indebtedness represented by the Securities will be senior and
prior in right of payment to all Subordinated Indebtedness, to the extent and
in the manner provided in such Subordinated Indebtedness.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provisions shall control. The provisions of TIA Sections
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310 through 317 that impose duties on any Person (including the provisions
automatically deemed included herein unless expressly excluded by this
Indenture) are a part of and govern this Indenture, whether or not physically
contained herein.
SECTION 12.2 Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
or first class mail, postage prepaid (except that any notice by the Trustee to
the Company of a default or an Event of Default under this Indenture shall be
by registered or certified mail, postage prepaid, return receipt requested), or
by a nationally-recognized overnight express courier service (which notices or
communications shall be deemed received, in the case of the Company, the
business day after the receipt thereof by such service and, in the case of the
Trustee, upon receipt), addressed as follows:
if to the Company:
Rent-Way, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
Manufacturers and Traders Trust Company
Corporate Trust and Agency Services
▇▇▇ ▇&▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered, and
five (5) calendar days after mailing if sent by registered or certified mail
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to the address of such Securityholder as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice, as
required by this Indenture, then such method of notification as shall be
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51
made with the approval of the Trustee shall constitute a sufficient mailing of
such notice.
If the Company mails any notice or communication to Securityholders,
it shall mail a copy to the Trustee and all Agents at the same time.
SECTION 12.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 12.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.5) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.5) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.5 Statements Required in Certificate and Opinion.
Each Certificate and Opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.6 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar, Paying Agent or Conversion Agent may make
reasonable rules for its functions.
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SECTION 12.7 Record Date.
Whenever the Company or the Trustee solicits an act of
Securityholders, the Company or the Trustee may fix in advance of the
solicitation of such act a date as the record date for determining
Securityholders entitled to perform said act. The record date shall be not more
than 15 days prior to the date fixed for the solicitation of said act.
SECTION 12.8 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banks or
trust companies in the city in which either the Trustee or the Company is
located are not required to be open. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 12.9 Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law.
SECTION 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.11 No Recourse Against Others.
No shareholder, director or officer, as such, past, present or future,
of the Company or of any successor corporation or trust shall have any
liability for any obligation of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Security by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
SECTION 12.12 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 12.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 12.14 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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SECTION 12.15 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
RENT-WAY, INC.,
a Pennsylvania corporation
By:____________________________
Name:
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY
as Trustee
By:____________________________
Name:
Title:
55
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE................................................................................... 1
SECTION 1.1 Definitions.............................................................................. 1
SECTION 1.2 Other Definitions........................................................................ 5
SECTION 1.3 Incorporation by Reference to Trust Indenture Act........................................ 6
SECTION 1.4 Rules of Construction.................................................................... 6
ARTICLE 2
THE SECURITIES............................................................................................................... 7
SECTION 2.1 Form; Dating; Incorporation of Form in Indenture......................................... 7
SECTION 2.2 Execution and Authentication............................................................. 8
SECTION 2.3 Registrar and Agents..................................................................... 10
SECTION 2.4 Paying Agent to Hold Money in Trust...................................................... 10
SECTION 2.5 Transfer and Exchange.................................................................... 11
SECTION 2.6 Replacement Securities................................................................... 16
SECTION 2.7 Outstanding Securities................................................................... 16
SECTION 2.8 Temporary Securities..................................................................... 17
SECTION 2.9 Cancellation............................................................................. 18
SECTION 2.10 Defaulted Interest....................................................................... 18
SECTION 2.11 Securityholder Lists..................................................................... 18
SECTION 2.12 Persons Deemed Owners.................................................................... 19
SECTION 2.13 CUSIP Number............................................................................. 19
ARTICLE 3
REDEMPTION................................................................................................................... 19
SECTION 3.1 Notices to Trustee....................................................................... 19
SECTION 3.2 Selection of Securities to be Redeemed................................................... 19
SECTION 3.3 Notice of Redemption by the Company...................................................... 20
SECTION 3.4 Effect of Notice of Redemption........................................................... 21
SECTION 3.5 Deposit of Redemption Price.............................................................. 21
SECTION 3.6 Securities Redeemed in Part.............................................................. 21
ARTICLE 4
COVENANTS.................................................................................................................... 22
SECTION 4.1 Payment of the Securities................................................................ 22
SECTION 4.2 Commission Reports....................................................................... 22
SECTION 4.3 Waiver of Stay, Extension or Usury Laws.................................................. 23
SECTION 4.4 Notice of Default........................................................................ 23
SECTION 4.5 Compliance Certificates.................................................................. 23
SECTION 4.6 Limitation on Dividends and Other Distributions.......................................... 24
ARTICLE 5
SUCCESSOR CORPORATION........................................................................................................ 24
SECTION 5.1 When Company May Merge, etc.............................................................. 24
SECTION 5.2 Successor Corporation or Trust Substituted............................................... 25
ARTICLE 6
DEFAULTS AND REMEDIES........................................................................................................ 25
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56
SECTION 6.1 Events of Default........................................................................ 25
SECTION 6.2 Acceleration............................................................................. 27
SECTION 6.3 Other Remedies........................................................................... 28
SECTION 6.4 Waiver of Defaults and Events of Default................................................. 28
SECTION 6.5 Control by Majority...................................................................... 28
SECTION 6.6 Rights of Holders to Receive Payment..................................................... 29
SECTION 6.7 Collection Suit by Trustee............................................................... 29
SECTION 6.8 Trustee May File Proofs of Claim......................................................... 29
SECTION 6.9 Priorities............................................................................... 30
SECTION 6.10 Undertaking for Costs.................................................................... 30
SECTION 6.11 Limitation on Suits...................................................................... 31
ARTICLE 7
TRUSTEE...................................................................................................................... 31
SECTION 7.1 Duties of Trustee........................................................................ 31
SECTION 7.2 Rights of Trustee........................................................................ 33
SECTION 7.3 Individual Rights of Trustee............................................................. 33
SECTION 7.4 Trustee's Disclaimer..................................................................... 34
SECTION 7.5 Notice of Defaults....................................................................... 34
SECTION 7.6 Reports by Trustee to Holders............................................................ 34
SECTION 7.7 Compensation and Indemnity............................................................... 35
SECTION 7.8 Replacement of Trustee................................................................... 35
SECTION 7.9 Successor Trustee by Merger, etc......................................................... 37
SECTION 7.10 Eligibility; Disqualification............................................................ 37
SECTION 7.11 Preferential Collection of Claims Against Company........................................ 37
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE...................................................................................... 37
SECTION 8.1 Satisfaction, Discharge and Defeasance of the
Securities............................................................................... 37
SECTION 8.2 Satisfaction and Discharge of Indenture.................................................. 38
SECTION 8.3 Survival of Certain Obligations.......................................................... 39
SECTION 8.4 Application of Trust Money............................................................... 39
SECTION 8.5 Paying Agent to Repay Monies Held........................................................ 40
SECTION 8.6 Return of Unclaimed Monies............................................................... 40
SECTION 8.7 Reinstatement............................................................................ 40
ARTICLE 9
AMENDMENTS AND WAIVERS....................................................................................................... 41
SECTION 9.1 Amendments and Waivers Without Consent of Holders........................................ 41
SECTION 9.2 Amendments and Waivers with Consent of Holders........................................... 41
SECTION 9.3 Compliance with Trust Indenture Act...................................................... 42
SECTION 9.4 Revocation and Effect of Consents........................................................ 42
SECTION 9.5 Notation on or Exchange of Securities.................................................... 43
SECTION 9.6 Trustee to Sign Amendments, etc.......................................................... 43
ARTICLE 10
CONVERSION OF SECURITIES..................................................................................................... 44
SECTION 10.1 Right of Conversion; Conversion Price.................................................... 44
SECTION 10.2 Issuance of Shares on Conversion......................................................... 44
SECTION 10.3 No Adjustment for Interest or Dividends.................................................. 45
SECTION 10.4 Adjustment of Conversion Price........................................................... 46
SECTION 10.5 Notice of Adjustment of Conversion Price................................................. 48
SECTION 10.6 Notice of Certain Corporate Action....................................................... 49
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57
SECTION 10.7 Taxes on Conversions.................................................................... 50
SECTION 10.8 Fractional Shares....................................................................... 51
SECTION 10.9 Cancellation of Converted Securities.................................................... 51
SECTION 10.10 Provisions in Case of Consolidation, Merger or
Sale of Assets.......................................................................... 51
SECTION 10.11 Disclaimer by Trustee of Responsibility for
Certain Matters......................................................................... 52
SECTION 10.12 Covenant to Reserve Shares.............................................................. 52
ARTICLE 11
SUBORDINATION; SENIORITY.................................................................................................... 52
SECTION 11.1 Securities Subordinated to Senior Indebtedness.......................................... 52
SECTION 11.2 Company Not to Make Payments with Respect to
Securities in Certain Circumstances..................................................... 53
SECTION 11.3 Subrogation of Securities............................................................... 56
SECTION 11.4 Authorization by Holders of Securities.................................................. 57
SECTION 11.5 Notices to Trustee...................................................................... 57
SECTION 11.6 Trustee's Relation to Senior Indebtedness............................................... 58
SECTION 11.7 No Impairment of Subordination.......................................................... 59
SECTION 11.8 Article 11 Not To Prevent Events of Default............................................. 59
SECTION 11.9 Paying Agents other than the Trustee.................................................... 59
SECTION 11.10 Securities Senior to Subordinated Indebtedness.......................................... 59
ARTICLE 12
MISCELLANEOUS............................................................................................................... 59
SECTION 12.1 Trust Indenture Act Controls............................................................ 59
SECTION 12.2 Notices................................................................................. 60
SECTION 12.3 Communications by Holders with Other Holders............................................ 61
SECTION 12.4 Certificate and Opinion as to Conditions
Precedent............................................................................... 61
SECTION 12.5 Statements Required in Certificate and Opinion.......................................... 61
SECTION 12.6 Rules by Trustee and Agents............................................................. 62
SECTION 12.7 Record Date............................................................................. 62
SECTION 12.8 Legal Holidays.......................................................................... 62
SECTION 12.9 Governing Law........................................................................... 62
SECTION 12.10 No Adverse Interpretation of Other Agreements........................................... 63
SECTION 12.11 No Recourse Against Others.............................................................. 63
SECTION 12.12 Successors.............................................................................. 63
SECTION 12.13 Multiple Counterparts................................................................... 63
SECTION 12.14 Table of Contents, Headings, etc........................................................ 63
SECTION 12.15 Severability............................................................................ 63
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